31st October 1999

The impossible dream of a forthright Bar

One of the petitioners is the Ravaya editor. In paragraph 29 of the petition, he states that "the 1st Respondent (Sarath Silva) was purportedly appointed as the chief justice on September 16, 1999 and on the following day a ceremonial sitting was held in the Supreme Court. The Petitioner believes that the ceremonial sitting of the Supreme Court had been fixed on the directions of the 3rd Respondent (K. Balapatabendi) who had informed the Registrar of Your Lordship's Court on September 16, 1999 to do so."

The petitioner says he had learnt that the practice was for the Bar Association of Sri Lanka to request such a ceremonial sitting in consultation with the chief justice and the Attorney-General, but notably in this instance there was a deviation from the practice.

The petitioner in paragraph 30 states: "the First Respondent has after 21.09.1999 in the course of proceedings before Your Lordships' Court sat two judges requiring into or considering the two complaints against the first respondent namely, their Lordships Justices Ameer Ismail and Shirani Bandaranayake." This the petitioner claims "is contrary to the principles of fairness and the rule against bias especially where the purported appointment of the first respondent as chief justice empowers him to nominate and constitute benches/judges hearing applications including the application against himself. True copies of two "legal news" published in Daily News dated 04-10-1999 and 06-10-1999 are annexed hereto marked P9A and P9B in proof of the said facts."

When Shirani Bandaranayake was appointed as a Supreme Court judge, she declined a ceremonial welcome. At that time, the Bar Association was opposed to her appointment, and there was a petition pending in the Supreme Court, challenging her appointment. Therefore at that time, the Registry of the Supreme Court was not fully knowledgeable of the feelings of the officials of the Bar Association. For that matter, it is believed that the president of the Bar Association did not meet the then chief justice and request him to arrange for a ceremonial sitting to welcome Shirani Bandaranayake.

A wag at Hulftsdorf Hill said the fact that there was no ceremonial sitting to welcome Dr. Bandaranayake in hindsight was the grandest welcome that the Bar could have given her, as it was much better not to hear pitiful adulations emanating from persons garbed in black gowns.

Yet the criticism against her appointment did in no way touch her dignity. It was purely an academic issue. There again the Bar Association and its executive committee acted as if they were in limbo patrum. It was others, not the Bar Association, who articulated their opposition and went before the Supreme Court to challenge her appointment.

Nirmali Perera, Head of the Legal Department and Acting Dean of the Law faculty of the University of Colombo, commenting on the appointment of Sarath Silva as chief justice, told a weekend newspaper: "The Bar Association is silent and muted avoiding its responsibilities. It is not taking any stand. We don't want a Bar Association like this. The Bar Association must be dissolved."

Ms. Perera may have got the impression that the Bar Association took a decision to oppose the appointment of Dr. Bandaranayake. The Bar council is composed of 250 to 300 members who ought to represent nearly 5,000 members. It is alleged that politicians in power by promising various perks used some delegates to oppose and disrupt the meeting of the Council, when a resolution was being taken up. The "Pel Kavi" lawyers were born. It was a sad reflection on the traditions and the proud history of the Bar Association.

It was the same Bar Association, irrespective of any political and other divisions, that stood firmly to protect the rights of the people. Felix Dias Bandaranaike tried to destabilize the Bar Association by taking over its building and putting forward one of his supporters to contest the presidency of the Bar Association.

The Bar rejected such manoeuvres. The building was given back to the Bar Association. Mr. Bandaranaike lost his powerful Justice Ministry, lost his Parliamentary seat, and finally lost his civic rights.

It was the same Bar Association that proposed a resolution condemning certain acts — such as the infamous Kalu Lucky episode — of the Jayewardene regime.

When Chief Justice Neville Samarakoon was called before a Parliamentary Select Committee, the Bar Association stood firmly behind him.

When Justice Raja Wanasundara was not appointed as the Chief Justice, the Bar passed a resolution protesting against the move.

When 'Goon Squads' were killing political activists and lawyers who appeared for them, the Bar Association condemned such acts, and got funding from abroad and launched the Legal Aid Centre of the Bar. The Bar Association educated the public, issued statements to the media, and carried out campaigns, both nationally and internationally, against extra judicial killings

The Bar Association is not a trade union. It was the foremost organization which protected the people from the tyranny of the Executive. Though on principle the Bar opposed the appointment of Justice Parinda Ranasinghe as chief justice, but as chief justice he started to accept letters from detenues and invited the Bar Association to prepare petitions and affidavits on behalf of them. The Bar always played its role constructively, and was accepted by the public as one of the most powerful defenders of their rights.

A large majority of members of the Bar were outraged when the President criticised the judges of the Supreme Court, but the Bar Association could not even pass a resolution expressing concern. From that moment onwards the Bar became a robot without a conscience.

Today the tragedy of the Bar is that its role has been taken over by others who are not lawyers. The Bar took up the matters concerning Upali Abeyratne and Lenin Ratnayake after their cases were exposed. The Bar felt by these exposures that the established order was threatened by a complete outsider. The values of the Bar Association, the rule of law, independent judiciary, and the dignity of the judges were threatened by the exposures in the media, but some members were more interested about obtaining state aid to build offices and lavatories for themselves.

On November 5, people of this country and the international legal forums will watch the events that will be unfolding in the Supreme Court. Could the chief justice even nominate a bench to hear a petition against himself? Would the chief justice, as prayed in the petitions, constitute a full bench? Will a galaxy of lawyers appear in support of the petitioners? It is reported that a number of foreign observers will be present to see and report on the happenings of that day. What would they feel if the legal fraternity do not appear for one of the petitioners? As reported, these are matters which concern the very existence of the rule of law and the democratic institutions and establishments of the country.

It seems that many judges of the Commonwealth and LAWASIA have been informed of the proceedings. UN Special Rapporteur Param Cumarswamy has indicated to one of the petitioners that he is willing to appear as amicus with permission of court if the court allows such a request.

"If the Supreme Court after granting leave invites the Special Rapporteur to address the Court as an amicus curai on the international standards and developments in other jurisdictions, then I would consider appearing. But the invitation must come from the Court itself. ..... The Canadian case re:Valente sets out principles of appointing benches clearly," Param Cumaraswamy said.

I would like to refer to Justice A. R. B. Amersinghe's "The Supreme Court of Sri Lanka". In the conclusion of a Chapter titled 'Becoming and staying the Court Supreme,' he says:."There is the dream, the impossible dream it seems, of an independent judiciary with exemplary judges whose every act is therefore accepted with dignified equanimity, by an educated and enlightened executive, legislature and public.

"No one, perhaps, expressed it better than Chief Justice Basnayake did when, in his farewell address from the Bench on July 31, 1964, he said: 'The prestige which the Judiciary enjoys today is the culminate effect of high traditions built up and sacredly preserved by a succession of Judges over a century and a quarter.'

"That prestige has increased over the years. The state should do nothing that will impair it in the slightest degree. It should not regard decisions against the state as unfriendly acts, and resort to retaliatory measures, whether they be legislative or administrative. It should, like any other litigant, learn to abide by the judgement of the final court. This is the surest way to increase its own stature and the power of the institution which it must in its own interests safeguard. "A judiciary is not independent unless the courts of justice are enabled to administer law by absence of pressure from authority, whether exerted through the blandishments of reward or the menace of disfavour. It is the duty of the Executive to preserve its independence. It should therefore be assiduous not to leave room even for the merest impression that such pressure is being exerted. "Judges too should remember that the prestige now enjoyed by the judiciary imposes on them a very heavy obligation to preserve and foster its fair name and honour. They should so regulate their conduct, both in and out of court, as to further increase the public confidence in them.

"To the people the judiciary is the sole protection against tyranny, autocracy and the intemperate acts of the bureaucracy. To them it is the forum in which the liberty of the subject can by asserted. To them it is the place where their wrongs can be remedied, be they committed by a fellow citizen or by the state. To them, it is the only forum in which they can challenge the state on even ground.

"Every step the Government takes to preserve the independence of the courts, every measure introduced to safeguard them, will inevitably redound to its credit. No state is safe with a subservient judiciary. It is the bane of a country, and it enfeebles a nation and makes cowards of its citizens".

The Special Assignment

Editorial/ Opinion Contents