Hulftsdorp Hill

15th August 1999

Rules of etiquette: the scale is not even

By Mudliyar

Mahanama Tilakeratne resumed duties as high court judge Colombo — a post which had remained vacant from the time he was arrested and produced before the Kesbewa Magistrate on a charge of attempted murder.

The case against him fell like a house of cards, thanks to the independent and fearless judges. Yet after his acquittal, it took nearly three weeks for the President to withdraw her letter directing the Judicial Service Commission to send Judge Tilakeratne on compulsory leave.

The letter that was received by the Chief Justice from the President, signed personally by her, had an additional condition which may have been a surprise to many who think that the Executive should not have any role to play concerning disciplining the judges.

It was the President who initiated the inquiry based on a petition sent to her by the complainant's wife which resulted in the arrest of Mr. Tilakeratne. As it was a directive from the President the CID proceeded to find evidence to implicate Mr. Tilakeratne.

It is paradoxical that after the Kesbewa Magistrate discharged and acquitted all those who had been charged by the CID, the President has laid a condition that the reinstatement of Mr. Tilakeratne should be subjected to a disciplinary inquiry of his conduct and behaviour. But the President should inquire:

(1)Why the Attorney General sent senior state counsel Wasantha Bandara to the Kesbewa Magistrate Court with instructions to obtain a warrant of arrest on the high court judge, when Romesh de Silva, the then president of the Bar Association, agreed to surrender him to the CID.

(2) Why the AG permitted the CID to detain Mr. Tilakeratne after the CID informed him at 8 o'clock in the night that he had been released on bail by the Magistrate, instead of ordering the CID to immediately drop Mr. Tilakeratne at his residence and apologize to him for the inconvenience caused.

(3) Why the AG sent State Counsel Sarath Jayamanne to the magistrate's court on the next day in Colombo and did not tell him that the Magistrate had recalled the warrant and released the judge on bail.

(4) Why the AG sanctioned a prosecution against Mr. Tilakeratne for a charge of attempted murder by shooting, when he had the benefit of the investigation notes and the IB extracts before him and when the injuries sustained by the victim were not as a result of a gunshot; no spent cartridges were found at the scene; the victim, his wife or his children did not speak of Mr. Tilakeratne shooting at anyone. The only evidence of Mr. Tilakeratne's complicity came from a witness who made a statement 89 days after the incident.

To erase the sense of abashment of judicial officers of this country, the President should hold an impartial inquiry into these matters

To win the confidence of the people she should appoint Minister Lakshman Kadirgamar to hold such an inquiry.

Percy Wickramasekera, former Communist Party MP and former secretary of the SLFP Lawyers Association, has written to the President of the Bar Association and the Chief Justice, stressing the importance of protecting the judiciary — an act which is more important than protecting individuals irrespective of any position they hold.

He states: "The charges/allegations against this person (District Judge Upali Abeyratne) though they are not criminal and equally serious are compounded by the alleged involvement of Sarath N. Silva, P.C. who holds the position of Attorney-General and hence the Head of the Official Bar. This itself makes it so serious as to make any further comment unnecessary.

Be that as it may, the President's remark that the Chief Justice should inquire into the conduct and behaviour of Mr. Tilakeratne should please the person of the calibre of Percy Wickramasekera and a large majority of those in the profession who espouse the cause of righteousness.

If this is an important criteria she values when appointing judges then there is nothing to worry.

It is wrongly assumed by many lawyers that the donning of a black coat permits one to be above the law and therefore has the least respect for it. For this year alone, the Supreme Court has issued nine rulings against attorneys who have by various disgraceful acts committed a breach of the code of conduct.

A young lawyer has promised to marry a girl whose father was a Muslim and the mother a Sinhalese, expressing his love and affection to the girl and promising to marry her in several letters. When the affair became more serious, the lawyer convinced the girl that he should possess a car so that his practice and status would improve and asked her for a loan of Rs. 150,000.

Her parents, probably thinking that the loan of Rs. 150,000, would keep him bound to the pledge to marry the daughter conceded. After the loan was given the lawyer's visits to the girl's house became less frequent. He did not even reply the love letters sent by the girl. Later the girl made some inquiries and found out that the lawyer had married doctor.

The girl wrote to the lawyer demanding the money back. The lawyer asked for six months to repay the loan. The girl then wrote to the Supreme Court and to the Bar Association stating the facts and circumstances. The lawyer got excited and offered to pay the money in instalments. When the girl refused, he paid the money in full at a police station and got the girl to agree to withdraw the complaint to the Supreme Court.

But she wrote to the Supreme Court that she insists that the proceedings to continue against the lawyer. The Supreme Court has now issued a rule to decide whether the attorney should be struck off from the roll.

The more liberal minded person could argue that the attorney did not do anyone of these acts in his professional capacity as a lawyer. His affair and the loan are part of his private life and private transaction. But the Supreme Court has thought otherwise.

When a person enters the portals of the legal profession he is expected to conduct himself with high moral rectitude. His behaviour and conduct privately and publicly should be such that he should set a standard for himself and for other human beings who do not belong to this noble profession.

Similarly a lawyer who assaulted another outside a high court and attempted to assault him on the street had been issued a rule for the said acts on the basis that those acts would be reasonably regarded as disgraceful and dishonourable by the high moral standards of conduct that should be maintained by lawyers.

Especially in the second instance, there is no question of dishonesty or abuse of authority or moral turpitude. But the Supreme Court under the rules of etiquette which govern lawyers decided to issue a rule and if found guilty strike his name off from the roll. The question that pricks the conscience of every person is whether these rules of etiquette applied only to the lawyers and not to the Judges.

If it is in the interest of everyone concerned that punishment for any amoral conduct which brings dishonour and disgrace to the judiciary, it must be carried with much more vigilance and force against the Judges than the lawyers, as they are directly responsible for the moral conduct of every citizen who is brought before them.

These are matters that affect the legal profession. This is not a matter which concerns an individual or a government or a political party. Enough has been said in the media about Lenin Ratnayake, Palitha Bandaranayake, Upali Abeyratne and Sarath Nanda Silva. If those who administer justice and those who are in power are deaf and blind to the virulent accusations that have been made against these persons it is up to the Bar Association of Sri Lanka and members of the public to rise against such calamity and protect the institution of the judiciary which is the last bastion of democracy!

The Jungle Telegraph

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