| by Basil Fernando
Hopefully a better time is beginning
( December 15, 2012, Hong Kong, Sri Lanka Guardian) The Bar Association of Sri
Lanka passed a historical resolution today opposing the impeachment motion and
avowing that, if the incumbent CJ is removed, the Bar Association will not
welcome anyone who is appointed in her place. The following is a summary of the
resolution given by the Lawyer’s Collective.
(a) President to reconsider the
impeachment, in the light of his recent statement on the report.
(b) If the parliament proceeds
with it, then to enact a procedural law, guaranteeing Rules of Natural Justice
(c) If the CJ is removed
without following Rule of Law and Natural justice, then the Bar would not
welcome the new appointee”
The Bar Association meeting was
a response to a letter written by Mr. SL Gunasekara, a senior lawyer, who
wrote,
“My
suggestion is that the Bar Association adopts a resolution and/or makes a
public pronouncement that it requests all its members to refrain from accepting
appointment as Chief Justice in the event of the incumbent Chief Justice being
impeached. Similarly I believe that the
Bar Association should call upon all others who are not members of the Bar
Association also to decline to accept that post if it was offered to any of
them; and also that the Bar Association should call upon all its members and
others to boycott and boycott completely, both socially and professionally, any
person whoever it may be who accepts appointment as Chief Justice in the event
of the Impeachment of the incumbent Chief Justice being effected. Such boycott should in my considered view go
to the extent of refusing sit with such new Chief Justice (if any) on the Bench
of the Supreme Court [if a Judge], or to appear before such new Chief Justice
(if any) as the case may be. [if an Attorney-at-Law].”
It was also reported that about
3000 lawyers attended the general meeting. This is the largest reported number
that have ever attended such a meeting of the Bar Association. The lawyers came
from all parts of the country. The response of the lawyers on this occasion is
a welcome change to many years of apathy and inaction. However, as the members
of the bar have begun to grasp the gravity of the situation, they have moved to
respond.
Earlier this week, the Judicial
Services Association also, in a clearly worded statement, expressed their
opposition to the Parliamentary Select Committee “trial” and urged the
President not to take any actions on the basis of the recommendations of the
PSC. They further explained that the removal of a judge should only be done by
following the internationally accepted norms and standards.
Thus, the lawyers and the
judges of Sri Lanka have spoken, and they have let the President and the
country know that the impeachment process as it stands now is unacceptable and
illegal, and that they would oppose it.
With these expressions of clear
opposition in unambiguous terms, one of the most vicious aspects of the 1978
Constitution has now been challenged. This constitution was passed with the
clear intention of displacing democracy and the rule of law, and to give the
Executive President absolute power. An early application made by the President
to the Supreme Court through a Solicitor General clearly expressed his wish to
have the same status as that of a monarch. The Supreme Court, even in the early
years after the passing of the 1978 Constitution, rejected this view.
However, from the passing of
the 1978 Constitution up to now has been a long period, during which the
independence of the judiciary has been severely undermined, and the system of
rule of law and due process, well established back then, have seen alarming
setbacks during this period.
However, what was in favour of
President Jayewardene were the long years of internal conflict, which finally
blew up into a civil war. As a result of this internal conflict, the entire
society was silenced on all other matters. One of the results was that the
reaction against the authoritarian move on the part of the Executive President
went unchallenged. There was even an idea that, during a time of internal
conflict, an authoritarian leader may be a better alternative. Ideological
developments during this period and the way they were manipulated have already
been exposed by many and much written material exists on that issue. What is
important to note is that there was a silencing of the society during that
period, and the emergency regulations, the anti-terrorism laws and the intense
violence that existed at the time prevented strong opposition to the
undermining of the rule of law and democracy.
The move by the present
government to remove the Chief Justice herself in an arbitrary and very rude
fashion has created a backlash and perhaps the most important constitutional
crisis that has taken place in Sri Lanka since the promulgation of the 1978
Constitution.
The lawyers, the judges and the
civil society in general are beginning to reckon with the danger that the
society is faced with under the Executive Presidential system. The opposition
that the lawyers, judges and civil society have demonstrated against the
impeachment move by the government is only a manifestation of a much larger
protest and even anger that exists in the country today against the political
development that tends towards the establishment of the hegemony of security
forces taking the place of the institutions of the rule of law.
In these circumstances, these
protests, if they achieve their ultimate aim, should be directed towards then
ending of the Executive Presidential system and bringing about significant
constitutional changes to re-establish democracy and rule of law. We hope that the firm determination shown on
the 15th of December 2012 will be the beginning of a serious reckoning on the
part of the society as a whole against the threats forced against it.
