| by Basil Fernando
( December 8, 2012, Hong Kong, Sri Lanka Guardian) The letter written by
the senior and well-respected lawyer SL Gunasekara provides a very
thought-provoking approach to dealing with the present impasse created by the
government’s wish to proceed with the impeachment against the Chief Justice
Shirani Bandaranayake, which they are doing irrespective of the request made by
the Supreme Court to delay proceedings on this matter until they make a
determination on the question for reference made by the Court of Appeal. The
government is also ignoring objections taken on the basis of serious legal
grounds – that the removal of a superior court judge should be preceded by an
inquiry of an impartial tribunal consisting of judicial officers.
 |
The bitter experience of the last few decades has given rise to very profound reflections among legal practitioners, as well as the informed public. There are times when the self-understanding of follies leads people to wisdom.
SL Gunasekara is a
lawyer with many long years of practice in many capacities and his book The
Lore of the Law and Other Memories reflects a very deep disappointment in
the manner in which the judiciary and legal profession has sunk to the lowest
depths in recent decades.
The way he tells the
story of “the good old days” and about the present day practices should be read
by anybody who wishes to grasp the kind of crisis the rule of law is facing in
Sri Lanka. It is on the basis of such deep reflection that the present
resolution has emerged and I am sure that any sensible lawyer or judge would
not find it difficult to agree with the proposal he has made.
His proposal reminds
me of the lawyers’ movement in Pakistan. Mr. Muneer A. Malik, one of the
leaders who provided the perspective for this movement, has provided many
insights into the strategy that the lawyers’ movement adopted when General
Musharraf called their Chief Justice Iftikhar Muhammad Chaudhry and asked him
to resign from the post of Chief Justice, threatening him with impeachment if
he did not comply.
As this news reached
Mr. Muneer Malik, who was then the President of the Supreme Court Bar
Association in Pakistan, he has said in public that he immediately called the
Chief Justice and told him that if he does not succumb and give into this
request, the lawyers in Pakistan would stand by him to the end. He also said
that he told the Chief Justice that if he were to betray them, they would also
not hesitate to expose him.
He and others have
said that they were not great admirers of Chaudhry as Chief Justice as he had
taken some compromising decisions in the past. However, what they were
defending at that moment was the independence of the judiciary. One of the Pakistani lawyers’ methods was to
withdraw cooperation from those interim judges who were appointed by General
Musharraf. Thanks to that bold support, soon a movement grew from among the
lawyers and judges, many of whom dared even to face prison terms in pursuit of
this cause. Mr. Muneer Malik himself was imprisoned and even denied medical
treatment.
As SL Gunasekara has
pointed out, the challenge at the moment is to stop the process of the sinking
of the judiciary to a stooge judiciary. This aspect has been raised by many
others, including myself, who have participated on this issue since the
impeachment motion was announced.
The Sri Lankan
judiciary has gone down a long way towards becoming a stooge judiciary. In
fact, at the time when SN De Silva was the Chief Justice, it was indeed reduced
into a thoroughly stoogelike position. Beginning with the 1972 Constitution,
continued through the 1978 Constitution, there has been a campaign to reduce
the independence of the judiciary and turn it into less than a separate branch
of government. Even the wording of the 1978 Constitution, that the people’s
sovereignty would be exercised by the parliament through the judiciary, was a
formulation that tried to create a doctrine that the judiciary was a lesser
branch of government as compared to the legislature.
The bitter experience
of the last few decades has given rise to very profound reflections among legal
practitioners, as well as the informed public.
There are times when the self-understanding of follies leads people to wisdom.
Perhaps what we are facing at the moment in terms of justice in Sri Lanka is
such a moment. On such occasions, it is possible to forge a will to counteract
even the harshest odds and to turn events to better achieve what the people
consider to be the good and the right thing to do.
It is better than
lamenting the past and cursing the villains; better to take a bold step to turn
the course of events. In the suggestion made by SL Gunasekara, such a position
has been suggested. I am sure that the great legal minds of the past who have
walked the Hulsdorf, such as HV Perera, HL De Silva, Sir Sidney Abrahams and
Neville Samarakoon and many others would, in a situation like this, have found
this proposal made by SL Gunasekara to be the appropriate and proper decision
to take under the circumstances. It is to be hoped that the Bar Association
will soon adopt this resolution and mobilize the lawyers to implement it.
Mahanayakes and the
other senior representatives, the academics and professionals, and people from
many other walks of life who, in the recent weeks, have taken a very active
interest in the impeachment issue, could now give moral support to this
proposal and exhort that no one should accept the position of Chief Justice in
the event of an impeachment until this matter is properly resolved.
 The letter written by the senior and well-respected lawyer...){kind=link}