Hulftsdorp Hill

15th November 1998

The last supper at the Bar

By Mudliyar

A local film producer who had, with great interest followed the turn of events, from the allegedly illegal arrest of Mahanama Tillekeratne to Romesh de Silva refusing to swear an affidavit, then Desmond Fernando asking him to resign and the melodrama of some members of the Council trying to shower praise and move a vote of confidence on their President and the climax of the vote of confidence being countermanded by a resolution proposed and seconded empowering Romesh de Silva to grant an affidavit whatever be the fanciful dictates of the Executive Committee Bar Association, with the view that the melodramatic contents and the theatrics of the Bar Association scenario are so spell binding that he wanted to purchase the rights from the Secretary of the Bar Association before Stephen Spielberg buys it from another. The film maker has decided to name his new film 'Kapati Arakshakayage Veradunu Kurumanama'

On the first day of the Coca Cola Trophy where Sri Lanka met India at Sharjah, the Executive Committee of the Bar Association were to meet and decide whether to permit Romesh de Silva to furnish the affidavit required by Ranjit Abeysuriya or not.

When the evening came, Romesh de Silva arrived with the twelve and when they were reclining at the table discussing the matter of the affidavit, the lights went out. As if someone commanded "let there be darkness" it was believed that some would betray the cause of De Silva. supported by Faiz Mustapha and Neelakandan on the hitherto revered principle of confidentiality of the discussions the President of the Bar Association had with public officers.

If the principle is not upheld, these two opined that the future Presidents of the Bar Association would encounter public officers, with whom they have to discuss matters relating to the Bar, running and hiding in the closet. .

No one should betray the principle of confidentiality would be the echo of the great men of learning who adorn the Executive Committee.

The erosion of confidentiality and the possibility of betrayal was so imminent that it was decided for the first time in the history of the Executive Committee of the Bar Association, and may be for the last time, that men of great learning and forensic ability and the leaders of the profession should sit and cast their vote in absolute secrecy, so that no one would know who betrayed the principle of confidentiality.

But when the votes were cast and counted it shocked the conscience of all those persons who fought for the principle of confidentiality.

The members of the Executive Committee overwhelmingly rejected the so called principle of confidentiality, on the simple theory understood by even a common or Garden Lawyer that the betrayal of the principle of confidentiality, if there was any, took place when De Silva decided to speak to the world about the leadership he gave to preserve the independence of the Judiciary, but which unfortunatley ended in the arrest of the high court judge which resulted in his being taken to the fourth floor and being meted out degrading treatment.

Of the 13 members present 8 members voted for the proposition that Romesh de Silva should give the requisite affidavit and 4 members voted against it. Romesh de Silva presided and did not vote as was the proper thing to do.

Those absent from this historic meeting of the Executive Committee were Faiz Mustapha, P.C.(Deputy President and the main architect of the argument that after President de Silva went public about the discussion he had with AG still there was the principle of confidentiality) Ajantha Cooray (former secretary of the BASL, sick down with flu) Anil Silva (former Secretary of the BASL, and formerly of the AG's Department), Hilary Fernando (from Chilaw who always spoke with a great conviction at the meeting of the BASL, that not only should the members pass a vote of confidence, but also should condemn Desmond Fernando for asking the President to resign) A.C.S. Hameed (from Anuradhapura) Sunil Abeyratne (from Mawanella) Mahinda Lokuge, Sanjaya Gamage (the only two members representing the Junior Bar.)

Finally, every effort to thwart the President from giving the affidavit failed. And for the first time in the history of the Bar Association some members of the Council had to propose a vote of confidence on their President. This is a clear indication that even the President himself and those members who supported such a move were uncertain whether in fact the Council had confidence in their elected President.

I do not reckon that there is provision even in Parliament to bring a Vote of Confidence. The very fact that such a vote was thought to be necessary could be indicative of the fact that a fair number of lawyers have lost their confidence in their President Romesh de Silva for his failure on his own accord to swear as to the truth on matters on which he went public with regard to the illegal arrest of Mahanama Tillekeratne.

Romesh de Silva in his defense has said that he has resisted all attempts to politicize this issue and has thus antagonized several persons who desired this issue to be politicized and wished to make political gain on it.

It is tragic that Romesh de Silva equates his refusal to give an affidavit to Ranjith Abeysuriya in support of a case he handed over to Mr. Abeysuriya as an attempt to politicize this issue.

It is acknowledged that Jeyaraj Fernandopulle, M.P. and Vasudeva Nanayakkara, M.P. of the P.A. have unequivocally condemned this arrest.

The only person who could have articulated a forceful argument in favour of the arrest was Dr. G.L. Pieris, who had very correctly refused to be drawn in to a conflict where the Bar was fighting to preserve the independence of the Judiciary. S.S. Sahabandu, P.C. the President of the SLFP Lawyers' Association advised against some junior members who wanted to have a counter-demonstration.

He stated that the matter was non-political and SLFP lawyers should always strive to preserve the independence of the Judiciary. S.S. Sahabandu P.C. informed President Chandrika Bandaranaike Kumaratunga of the stand of the SLFP lawyers in this matter and she accepted the position of Mr. Sahabandu.

A large number of leading lawyers of the SLFP actively supported the picketing and the demonstrations of the lawyers.

Wijaya Wickramaratne, leader of the Kandy Bar and the Leader of the Opposition of the Central Provincial Council picketed with other lawyers opposite the Kandy Courts.

Mr. Romesh de Silva has erred seriously and gravely when he said to the press that some desired that this issue be politicized.

The members of the Bar irrespective of their political leanings have stood steadfastly to preserve the independence and dignity of the Judiciary irrespective of whatever soiled paths others chose to tread. The speech made by T.G (Ged) Gooneratne, the brother of C.V. Gonneratne , the Minister of Industires in the present government is the clearest example that the members fought this issue to protect the judges and the profession, as the whole exercise would give wrong signals to the other judges who as are independent and forthright as Mahahama Tillekeratane.

"I take this opportunity to endorse fully all actions and steps taken by you as our President in regard to the unlawful and wrongful arrest of Mahanama Tillekeratne, a Judge of the High Court. The only bone-of-contention is in regard to the Affidavit which you had undertaken to give Ranjith Abeysuriya, Senior Counsel for Mahanama Tillekeratne.

The draft Affidavit submitted by you to Mr. Abeysuriya was unacceptable to him as it did not contain all the facts which you had placed before the public on this matter. Mr. Abeysuriya requested you to furnish him with an Affidavit incorporating all such facts.

Thereupon, you consulted the Deputy President, Secretary and Treasurer of the B.A.S.L. – all of whom advised you against giving any Affidavit at all, and you acted accordingly. You told the Bar Council that you are willing to give an Affidavit containing all the facts if the Supreme Court directs you to do so.

The Deputy President informed the Bar Council that he had advised you against giving an Affidavit for the reason that you should, as our President, maintain strict confidentially in respect of all communications between you and Judges and high ranking public officials on this issue.

As you have, from time to time, not only issued detailed statements to the Press but also appeared on T.V. with two other members of the Executive Committee and made full disclosure of all the facts relating to this issue, I submit that the question of confidentiality does not arise at all. Furthermore, both you and I are well aware that the Supreme Court will not seek an Affidavit from you even though you are willing to furnish one if so directed by the Supreme Court.

Therefore, I am of the opinion that you should give the required Affidavit. Eardley Perera, a respected former President of ours, expressed the view that the Executive Committee should permit you to swear an Affidavit.

I will go a step further and I formally propose that, "The Bar Council authorizes and empowers the President of the B.A.S.L. to give an Affidavit in respect of all matters on which he has gone public in regard to the unlawful and wrongful arrest of the High Court Judge, Mahanama Tillekeratne." The resolution was proposed by T.G. Gooneratne and seconded by Hemantha Warnakulasuriya.

The value of a spine is an absolute value, and not one which varies from time to time, incident to incident and person to person.

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