We must not flex our muscles when dealing with Religions or Courts of Justice

Shirani B. attends BASL Convocation; Mohan Pieris not invited

( March 30, 2013, Colombo, Sri Lanka Guardian) Shirani Bandaranayake attended the Annual Convocation of the Bar Association of Sri Lanka in Colombo on March 30, 2013. She was invited as the 43rd Chief Justice of Sri Lanka. Mohan Pieris, the 44th Chief Justice, was not invited. Attorney General Palitha Fernando came to the venue but left before proceedings began.

Wijedasa Rajapakshe, UNP MP and President’s Counsel, officially handed over the Presidency of BASL to Upul Jayasuriya. While there were many empty seats in the auditorium at the beginning of proceedings, they filled up as the evening wore on. Among those present were foreign diplomat, senior members of the clergy and politicians. Mrs. Bandaranayake did not address the gathering. Retired Supreme Court Judge C.V Wigneswaran delivered a hard-hitting speech in which he said that, despite the many regrettable incidents that have plagued Sri Lanka’s legal system in the last three-and-a-half decades, the future of the profession did not look as bleak as it does today.

“For a person who is completing fifty years in the profession next year, of which twenty five were on the Bench, the trajectory of the Legal System has been depressing and most recently alarming,” he said. “We are at the nadir in every aspect of our profession. None so alarming as the systematic institutional erosion.” He also warned that the attach on religious freedoms radicalises the polity and unleashes dangers that cannot be controlled even by those who foster them. “The attack on the Temple of Justice removes the only rational and non-partisan check on Government and individual excesses, he said. “The combination of the two at present is both a time-bomb waiting to go off and a cancer spreading to other areas at the same time.”

Delivering his inauguration speech, Mr. Jayasuriya said the bond between the independence of the judiciary and the independence of our profession is so deep “that we may call ourselves twins”. “Indeed,” he said, “we stand or fall together.” He commented that a political judge or a political Chief Justice can cause more damage to the morale of the judiciary than an unscrupulous politician. He emphasised that it was the solemn duty of the Bar to face these challenges with firm resolve and to stand up to judges acting according to political dictates rather than the judicial conscience. He said they must defend judges who defy political commands at the expense of their civil liberties and sometimes, their very lives.

Justice Wigneswaran’s full speech:

Your Ladyship Dr.Mrs.Shirani Bandaranaike, President Mr.Upul Jayasuriya, Former Attorney General Mr.Sunil de Silva, my dear Brothers and Sisters!

It was not very long ago that I had the good fortune to address the Original Judiciary at their Annual Judicial Officers’ Conference. I mentioned then that it took eight long years since my retirement for them to remember me. It was indeed a pleasant surprise when your President- elect just a few days ago, last Wednesday, called on me to invite me to address you. Despite the short notice it showed that the Legal Profession still appreciates though rather belatedly the values and principles for which some of us stood for at great inconvenience, when in recent times such values are getting watered down or eroded around us.

I have no doubt kept away from such Inductions for some time preferring to lead a life of low profile and contentment but of course finding out from friends and others as to what was happening in the Legal Profession as well as in Courts.

Many of you might not know that I had been in the profession actively practicing for fifteen years before being called to serve the Judiciary in 1979. In 1977 I was one of the young Lawyers who went up to the late Mr. Neville Samarakoon, Queen’s Counsel, and invited him to come forward to contest the post of President, Bar Association. He said “Leave me alone! I like to lead a peaceful life!” He went on to elaborate on what he considered as essentials to his life-peaceful, which I believe is not relevant here!

But within a few months he had consented to shoulder the mantle of the Chief Justice of this Country. Soon after at a party I asked him “Sir! You were reluctant to contest the post of President, Bar Association but Destiny seems to have designed other plans for you.” He laughed, puffed at his pipe and said “When J.R. called me and asked me to accept the office of Chief Justiceship I told him “On one condition”. He asked what it was. I said “No interference of any sort”. “He agreed. So I agreed!” he said. How thereafter President Jayewardene forgot his promise and interfered with the Judiciary and what that led to, are part of our unfortunate history.

Despite the many regrettable incidents that have plagued our Legal System in the last three and a half decades, the future of the profession did not look as bleak as it does today. For a person who is completing fifty years in the profession next year, of which twenty five were on the Bench, the trajectory of the Legal System has been depressing and most recently alarming. We are at the nadir in every aspect of our profession. None so alarming as the systematic institutional erosion.

The powers that be in this Country are missing the wood for the trees, it appears. By interfering with the Independence of the Judiciary they are disturbing the course of Law and Justice in this Country for all time. To them, it appears, what are taking place in Sri Lanka are mere incidents or a series of incidents of inconsequential value. They are like the few trees visible to their eyes. But they do not appear to have any idea as to the avalanche that is to fall and pervade the entire Judicial future of this Country; the dangerous jungle into which we have stepped on. Bigoted and short sighted we are,we do not see the writings on the wall.

We must not flex our muscles when dealing with Religions or Courts of Justice. However provocative any Religious Organisation might appear to be, flexing muscles at them is not the proper procedure to be adopted. Especially when such Organisations have emotive votaries not only locally but also outside our Country. And again under the present context resorting to hoodlum tactics with Courts of Law too is also ill-advised

The attack on religious freedoms radicalises the polity and unleashes dangers that cannot be controlled even by those who foster them. The attack on the temple of justice removes the only rational and non-partisan check on government and individual excesses. The combination of the two at present is both a time bomb waiting to go off and a cancer spreading to other areas at the same time.

The absence today of one of the special Invitees, whose religion and whose profession are under attack, underscores the extent of the pressures exerted on even well meaning individuals, and the debilitating effect it has on their ability to act according to their conscience. In this regard I must commend the Honourable Attorney General for discharging a customary obligation without fear.

We have seen politicians who fan religious fervour paying with their lives to the extremists they helped create. I have seen politicians who tried to interfere with the Law and Courts of Justice, later falling prey to their own machinations. It is best to discuss matters of importance regarding any Religious Organization with their spokespersons or leaders rather than resort to violent tactics. So too it is best to allow the Judiciary to carry on undisturbed conforming to the delineations set out by Law for them. If we bend or seek to bend Legal Institutions to suit our whims and fancies however highly placed we are, then we would have to face such activities boomeranging on us.

For example Mr. J.R.Jayewardene bent the Constitution of this Country to suit him and his party. But those who have reaped the benefit of his tomfoolery are not those from his party. Those currently indulging in such indiscretions must take a lesson from what J.R. did and what is taking place today. It would be too late when the boomerang strikes us, to retrieve ourselves.

We Sri Lankans have a tradition of becoming very agitated and emotional about matters that affect our society, political or otherwise, and thereafter forgetting such matters completely. We are emotional but with short memories. Perhaps this is an island trait of living for the moment. But where did we inherit the trait of opportunism so pithily described in Sinhalese as Vaasi patheta hoiya? I found our Judges and others in the legal profession who vociferously stood by the wronged Chief Justice of this Country just the other day, suddenly taking an about turn. It is the highest court that has to take the greatest responsibility but how spectacularly they have capitulated. The members of the original judiciary and the members of the Bar rightly feel frustrated. Whether this disappointment will continue is to be seen. We must remember that we reap what we sow. President JR’s party inherited the effects of what he did in a negative way.

I believe I am senior enough to venture to make a few comments regarding our profession including the Judiciary. Let us remember that the profession is not different from each of us. We are the profession. And the profession is us. Therefore what each of us make of our professional life is the popular image we foist on the world at large. The popular image of our profession, I could assure you, is not at all complimentary. We are looked upon as parasites drawing the life blood of the society fattening ourselves but giving insufficiently in return.

Speaking of Judges sometimes they are found fault with for forcing settlements on parties when one of them has a very good case. Either they prefer not to labour themselves with the process of going through evidence and coming to a finding or their sole concern is to show conclusion of cases for the record. Sometimes Judges are criticized for having their favourite lawyers in Court. If so and so is retained the Judge would be favourable to us, is an oft quoted comment. Due to such state of affairs Lawyers bend in half to become favourites of the incumbent Judge. They are prepared to compromise their client’s case just to receive such judicial blessings.

No doubt a fair comment could be made in this regard if the performance of any Lawyer appeals to any Judge and it is borne out in Court.. But Judges must be careful that they do not go out of their way to show any partiality. In the provincial courts, when I used to preside, I did not allow Lawyers to see me in Chambers unless they were accompanied by the Lawyer for the other side. Otherwise all applications generally had to be in open Court. I kept a book with the Aaraachi in which every person who comes to see me in Chambers had to write down his name and inform what he wishes to discuss with me. I tried not to allow the anger certain Counsel may create in me in one case to affect me when the same Counsel appears in another case the same day. It would be as if he is appearing for the first time that day before me. These were simple means by which comments about familiarity or antipathy towards lawyers were to a great extent avoided.

Another area I have found to be wanting is the lack of interest shown by Co-Judges in Appellate Courts when it comes to writing Judgments. Since they decide on the Judge who would write a Judgment in advance, the other Judges show no interest to study the case or write either a judgment of their own or even a dissenting judgment. As a result Judgments are often scrappy and incomplete. If Co-Judges show interest the Judge who writes his Judgment would be more circumspective. Despite Justice Mark Fernando being a brilliant student of the Law I used to cross swords with him in his Chambers on many matters pertaining to our Judgments. Mark was such a patient Judge he would discuss any matter fully and completely and sometimes change his opinion if he saw merit in our arguments.

I do not wish to comment too much on our faults. But I must say I accepted this invitation to address you today to commend the Bar Association under the stewardship of Mr.Upul Jayasuriya for taking the correct legal stance with regard to the office of the Chief Justice. This Induction Ceremony has given Chief Justice Dr. Shirani Bandaranaike an opportunity to air her point of view to the Legal audience here and through the Press to the people at large. I hope no self – confessed relative of some ancient Sinhala King would take it upon himself to create hooliganism at this meeting since that seems to be the order of the day.

We must remember that the so-called Impeachment process against Chief Justice Dr.Shirani Bandaranaike was legally faulted. Both the Supreme Court as well as the Court of Appeal gave decisions in this regard. So long as Competent Courts of Law have held that the process adopted was faulty, then those who advocated such Impeachment should have gone to the relevant Court or Courts to have such orders or determinations quashed. They did not do so. By not doing so a dilemma arises. If the existing Orders are not reversed by a Fuller Bench and in fact do get confirmed in the future it would appear that all steps taken so far by the de facto Chief Justice would be illegal. Then irreparable harm and damages would be sustained by litigants whose cases were heard by a person who cannot be deemed to be the Chief Justice of this Country under the Law.

If the de facto Chief Justice continues to act as if his conduct is valid in Law and hears Applications, constitute Benches and makes Orders and Determinations so positively and confidently expecting a Divisional Bench to reverse the Orders already made, even if they do reverse the Orders already made in the future, then the integrity and impartiality of the Honourable Judges who make such orders would come into question. The delay has already given way to retirements and there is delay in those entitled to succeed, being brought in.

If in the future suppose a fuller Bench of the Supreme Court would not be called upon to review the already existing determinations of Courts, then it would become a mockery of the Judicial system. We would have taken steps acting contrary to the findings of a Court of Law but would continue not giving the slightest importance to the valid Orders and Determinations made by the Highest Judicial Forums of this Country.

Of course an application might be made to validate steps taken already, retrospectively. Whether those who have knowingly violated the law should be given relief for their high handed act is a matter to be decided. But eventually that would bring the entire profession and the judiciary into disrepute.

Thus there are inter alia three main possibilities and all three could lead to an impasse. If the Orders already made are upheld and not reversed, if they are reversed or if no application is made to reverse, there could be adverse consequences. A Democracy cannot be expected to flourish under illegalities and/or uncertainties.

Let me tell you something that I heard had happened in the North sometime ago. A District Judge had given an order with regard to a Land Case. The litigant who lost the case in the District Court went to a Kangaroo Court. The Judge there, a young Girl in her early twenties was given a copy of the District Judge’s Judgment. She felt that the Judgment was correct and mentioned so in Court. But may be because the litigant who lost the Case in the District Court was an ardent supporter of their Militant Outfit she made some variations which gave such litigant some time to stay on, on the land. The person who won the Case at the District Court wanted to take writ out in the District Court. The lawyer told the litigant “You have a de jure judgment in your favour but the other person has a de facto Order in his favour. If you take writ out there is a possibility that you would be hauled up before the Kangaroo Court for contempt of Court. You must decide what you should do.”

We are more or less in this unenviable position. Could it be said therefore that the Parliament has become the Kangaroo Court in this instance arrogating judicial powers to itself ?

It appears that Law and its sanction is based today on force rather than consensus; forced legitimacy rather than consensual legitimacy. It is by conforming to the Law that we could vest consensual legitimacy on the Law. Lawyers are an integral part in this process. By refusing to give legitimacy and sanction to the Orders and Determinations of the Superior Courts the powers that be are undermining their power and effectiveness. That such derogation is instigated by Parliament speaks ill of our Legislators.

I am glad that the Legal Profession has understood the seriousness of what is taking place and has geared itself to face the challenges. I thank your President-elect and the members of the Bar Council for having given me this opportunity to be with all of you and show my solidarity with what you are doing. Of course character assassinations through the Press, threats and intimidations, if not sheer physical violence, might be thrown at you by interested parties. But remember you are on a worthwhile journey. The journey to bring respect and legitimacy to Law and Order in this Country! The journey to oust force and coercion from the legal administration of Courts! The journey to consolidate our profession.

Mr. Jayasuriya! you have an unenviable task ahead. The Bar has overwhelmingly thrown its support behind you. I trust you will be a worthwhile repository of that trust. Now, more than ever, is the time where party affiliations and personal differences have to be placed aside and the Profession be given pride of place! I wish you well in the new year of Office. God bless all of you! Thank You.

Mr. Upul Jayasuriya’s full speech:

Ven. Maha sangha, Ven. Members of the Clergy, Hon. The Attorney General, Your Lordships Judges of the Supreme Court, Your Lordship President of the Court of Appeal and Judges of the Court of Appeal, other Judges, Your Excellencies of foreign Missions, Distinguished guests Ladies & Gentlemen,

I would like on this important occasion to thank all of you for the overwhelming support I received at the last election of the Bar Association of Sri Lanka. In the annals of the records of our association, the pattern of voting for the last election of office bearers reflects a rare trend. A clear unanimity amongst lawyers was reflected in the voting. While I take pride in receiving your trust and confidence, I am not so conceited to think that it was merely because of my popularity that this pattern of voting has emerged in our association!

Such undisputed commonality in the voting pattern at the recent election is testimony to the fact that all of us in the legal profession feel anxious and worried in regard to common problems. The legal profession faces tremendous challenges which are linked especially to threats to the independence of the judiciary which is the very foundation of our profession and democracy in our country. The strength of the Bench and the strength of the Bar are both closely linked because the Rule of Law requires that they complement each other. The bond between the independence of the judiciary and the independence of our profession is so deep that we may call ourselves twins. Indeed, we stand or fall together. Our own experience in Sri Lanka today reminds us of this critical link between the independence of the judiciary and the legal profession.

Phrases such as the independence of the judiciary and the Rule of Law may sometimes invoke cynical smiles rather than cheers. Yet may I crave your indulgence to briefly explain why I think these phrases are of fundamental importance to the Bar generally and to our country at this important time in our history?

The Beijing Statement of Principles of the Independence of the Judiciary (assented to in 1995 by the Sri Lankan Supreme Court under the stewardship of retired Chief Justice G.P.S. de Silva) quite rightly warns that judicial independence is essential to the proper performance of the judicial functions in a society committed to freedom and the rule of law.

Confidence in the administration of justice depends upon the public recognizing that judges act according to law and are free of pressure or interference that impact on their role and responsibility. If this confidence evaporates, so does public respect for the judiciary. To endeavour to maintain public confidence in the administration of justice is a grave responsibility that rests on judges themselves as much as on those in power. As we have seen to the detriment of the judiciary since 1996, threats to the good name of the judiciary can emanate from within judicial ranks as well as from outside. A political judge or a political Chief Justice can, in fact, cause more damage to the morale of the judiciary than an unscrupulous politician. Yet it is the solemn duty of the Bar to face these challenges with firm resolve, to stand up to judges acting according to political dictates rather than the judicial conscience and on the contrary, to defend judges who defy political commands at the expense of their civil liberties and sometimes, their very lives.

These are questions that have become peculiarly important to us at this time, perhaps more so than at any other point in the history of this association. One of the dark moments that all lawyers regardless of their personal political affiliations, are likely to remember for a long time, is the sending of police and hoodlums who were exercising police functions into Hulftsdorp some months ago purportedly to prevent the 43rd Chief Justice, Dr. Shirani Bandaranayke from entering the court premises. When the doors of the courts in Hulftsdorp were closed to the judges nearly three decades ago, then Chief Justice, the late Neville Samarakoon characterized it as the greatest assault on the courts in their entire history. Yet it could fairly be said that the above incidents in the heart of Hulftsdorp a few months ago was even worse. The court premises in Hulftsdorp are the symbol of the people's freedom. The executive must not be allowed to extend its armed fist and tread there with police boots. The executive's trespass into the court premises must be condemned and we must never permit such a situation to reoccur. I pledge that the Bar Association, under my Presidency, will do all it can to prevent such gross interference with the judiciary, an institution which should be the very foundation of the Rule of Law in our country.

The last election took place shortly after the purported removal of the 43rd Chief Justice of Sri Lanka in procedures, which the bar rightly saw as a violation of the norms of fair trial that we all cherish. These norms guarantee that an impartial inquiry by a competent body should decide on any charge leveled against an individual. The Bar’s belief that these norms were violated was demonstrated by the resolution that was passed at the last special general meeting, which we are bound by.

In each day of our lives, in our professional work, we try to guarantee this right of a fair trial to our clients whatever their social or economic status and standing. Every night, as we study our briefs and every working hour we spend in court, this is our preoccupation. Ensuring fairness is not just rhetoric for us but the very essence of the vocation to which we dedicate our lives. It was therefore natural for all of us to stand up for the defence of this right for the 43rd Chief Justice. It was a struggle that went beyond personalities and focused on the issues. This struggle was conducted in the full glare of public scrutiny, in spite of a biased state media which blatantly flouted the concept of contempt of court in obeying the instructions of those in the seats of political power.

I pledge that I will carry forward all the ideals and values that we stand for collectively in non-politicized activism. The Bar Association shall march with the avowed objective of protecting the integrity of the Bench and the Bar. Any government in power must respect the judiciary and the judgments that are handed down by the court. Failure to do so is a violation of public trust and it is the duty of the Bar to protect the judiciary from political interference.

I am aware that the times are difficult and that the responsibilities you have placed on me require me to give leadership to our Association and defend our right to practice our profession in freedom and dignity. Despite the difficulties we are faced with, we have no other option as members of our profession but;

• to work together,

• to talk together about our common issues;

• and be advocates for our own professional values and the Rule of Law;

• Our own cause and the cause of every citizen in the country

who wants to seek justice have now become one and the same.

If we lose our struggle for professional integrity, if we cannot defend our right to practice our profession with dignity and independence on the basis of the highest principles on which the profession is founded, then every citizen of the country who seeks justice will be at risk.

The judiciary and the Bar must be united in our struggle for the independence of the judiciary. The Judicial Officers Association needs to be specially mentioned in regard to the efforts that they have made to strengthen the understanding of the role and responsibility of both Bench and Bar in ensuring respect for the Rule of Law and effective administration of justice. We must work together to keep these principles alive in our beloved country. I shall pledge that the Bar Association of Sri Lanka will stand with them in their hour of need should there be a necessity.

The problems we face have come into even sharper focus with the adoption of the 18th Amendment to the Constitution, which has for all practical purposes abrogated the provisions of the 17th Amendment. These constitutional changes have aggravated the authoritarian character of the 1978 Constitution and caused problems not only to the Bench and the Bar but also to all public institutions in the country. Where the judiciary is concerned, appointments to vacancies are kept pending as a matter of course at the whim and fancy of the executive. This is not a healthy situation. Judges must be given security of tenure, there must be independent procedures put in place for their appointment and removal and they must be financially secure. However, the obnoxious practice of conferring privileged positions on judicial officers after retirement at the discretion of the executive “must stop”….. This compromises the integrity of the judiciary without a doubt.

Equally affected are those institutions, which are more directly linked to law enforcement and the administration of justice, namely the Attorney General’s Department and the police. I am not making a controversial statement when I state that both the police and law enforcement system and the Attorney General's Department have faced serious problems due to politicization and the loss of professional independence. It is no exaggeration to say that there is a public recognition of the serious negative impact caused to the administration of justice according to the Rule of Law by the undermining of these institutions. It is our responsibility to collectively strive to remedy this crisis of confidence.

Most importantly the principle of equality before law is being increasingly undermined in Sri Lanka. Public cynicism is widespread in regard to the manner in which this principle has been ignored. There is impunity for politically influential persons who openly violate the law. Others who may, under normal circumstances not be penalized, are being arbitrarily punished. This topic is part of the common conversation throughout the country. There is a glaring disregard of our penal code and the criminal procedure code. This should be of serious concern to the legal profession. There is a growing tendency for people to take the law into their own hands resorting to other means of dealing with disputes and even crimes. This greatly undermines the courts as well as the legal profession.

We are aware that in several countries where the rule of law has been undermined, litigation has been reduced to many forms of bargaining. In fact, often, it is nothing more than bargaining. Legal text and court judgments, including volumes of new law reports and other law reports are of little relevance when people decide that it is more effective to seek the patronage of politicians or even some criminals and other powerful persons in order to get their disputes or even cases settled. The fundamental threat posed by the undermining of the principle of equality before law, especially in administration of criminal justice can no longer be ignored by our profession without risking our survival as a profession.

The above issues that I have raised are relevant in deciding the kind of Bar Association that we want. We must recognize the fact that there has been serious criticism of the Bar Association by the public as well as by our own membership. These criticisms have been reflected in public discussions as well as in literature published by members of the legal profession. These criticisms reflect public concerns and the Bar Association must take these concerns seriously. We must not let the ‘great expectations’ on which this election was conducted yield to ‘compromise, capitulation and finally utter ignominy’ as has been phrased in one such relevant criticism. In the next year, in my office as President BASL, you, the members of the Bar, whom I am supposed to lead, will no doubt judge me on this steadfast commitment that I make. I only ask that the members of the Bar stand together in the attempt to make our association relevant to our times as well as in attempting to resolve the problems of the profession. We must work in solidarity with other professional groups and civil society groups in the community. The integrity and independence of legal systems and judicial institutions and the very law itself cannot be of concern to only judges and lawyers. Rather, it is of paramount concern to each and every citizen in this country.

International associations of lawyers such as the International Bar Association, many Bar Associations from countries in various parts of the globe including Law Asia have expressed solidarity with us in our struggle to protect the dignity and independence of the judiciary and the legal profession. It is a matter of regret that a team of senior jurists, led by an eminent Indian jurist and a former Chief Justice of India, who wished to come to Sri Lanka for the purpose of understanding the circumstances relating to the purported removal of the 43rd Chief Justice, Dr. Shirani Bandaranayake on behalf of the International Bar Association, were denied visas for travel to the country. The Bar Association of Sri Lanka needs to work in close association with their colleagues in other countries. Legal professions are based on common norms and professional values, irrespective of the country in which lawyers practice their profession. Therefore the Bar Association needs to intervene to ensure that all professional associations of lawyers and judges throughout the world have access to the members of the legal and other professions in this country, in order to discuss problems and issues of common concern.

The future of legal education is also of considerable concern to us. We owe to those, who will join tomorrow a profession that we seniors will eventually leave, a pledge to ensure high quality legal education. We must ensure, through our efforts to strengthen legal education, that they can enter the temple of justice without cynicism, and with a deep sense of understanding of the role and responsibility of our profession in society.

As the newly elected president I have shared these thoughts with you because it is essential for us to appreciate that we are a profession that has many promises to keep. We will not betray those promises. Having assumed the office of President BASL, my endeavor will be to harness your support and collectively work with other professional civil society groups to bring the Bar Association of Sri Lanka to a state of political-social-legal relevance to this country. This is a struggle that I will carry out with deep conviction, independence and impartiality and with no compromise on those core and abiding values of our profession that continue to have relevance and meaning in these difficult times.

We as the Bar, respected members of the judiciary and the public of this country must face together common challenges with courage and commitment. We will overcome storms and demonstrate that lawyers are a relevant and important profession in our country.

As the great poet Rabindranath Tagore said:

Let me not pray to be sheltered from dangers,

But to be fearless in facing them.

Let me not beg for the stilling of my pain,

But for the heart to conquer it.

Let me not look for allies in life's battlefield,

But to my own strength.