Litmus test of the independence of judiciary mooted by the BASL

Professional and academic correspondent

We compliment the Bar Association of Sri Lanka - a premier professional organization of lawyers, in the country in which every lawyer is statutorily gains entry to this honorable and noble profession at the admission as an Attorney at Law. Constitutionally and practically, every lawyer gains entry to the profession before the Supreme Court on becoming a member of the Bar Association who will be given right to vote and hold office on payment of the annual fee.

BASL is obviously, a very powerful professional body consisting of judges, law makers, members of the executive and powerful business and professional magnates. In addition, they espouse the cause of protection of human rights and independence of the judiciary. The BASL is responsible for legal aid and protection of civil rights.

Therefore, the concern of the BASL on the appointment of the Select Committee is understood. They have the right and duty to raise this issue which is a double edged sword. They have been extremely careful in canvassing only the procedural matters and not the 'core' issues - that is the personal and professional conduct of a former Chief Justice.

Parliamentary Select Committee

The second amended resolution by the BASL states that, the ‘membership’ does not condone the conduct referred to in the allegations to be investigated by the proposed Parliamentary Select Committee. Therefore, we further compliment regarding the concern of this professional body on the appointment of the Parliamentary Select Committee (PSC) to inquire into the conduct of the former Chief Justice on his conduct during the tenure of his office personally, professionally and as a Chief Justice who has been vested with enormous powers on legal education, administration of the justice system, including disciplinary matters of judges.

The resolution concerns the interpretation of Article 107 of the constitution, whether a retired judge can be investigated. It is an acceptable legal principle that once an act is committed it is committed for the rest of the life. Acts committed by this person is against the judiciary the professionals, the individuals and the country as a whole which is irreparably dangerous which should be prevented in future. This issue has nothing to do with independence of judiciary. In fact this clears and enhances the protection and preservation of future judges and uplifts the independence of the judges and judiciary.

If these issues are undetected and not investigated there could be disastrous results which will have drastic effects on the judiciary and administration of justice. There is no harm in investigation of complaints and allegations in the interest of the nation and a large number of victims, including senior lawyers, senior judges and general public.

Underworld personnel

The contents of the averments in the Select Committee are not only alarming but frightening. A large number of members of the legislature have indicted the former CJ on grounds running to (a) to (s) of the Select Committee report on his actions on the judiciary and more importantly further two issues which are of more serious nature. The association with underworld personnel who has been the caretaker of a judges' institute is an offence amounting to a criminal and civil nature and actions which are unbecoming a Chief Justice.

It is a worrying factor that all the complaints against the ex-CJ are not properly and completely documented in the Parliamentary Select Committee. He has been inhuman to many including senior lawyers. A very senior lawyer was humiliated to the extent that his colleagues were prevented from helping him when he fell unconscious due to a sickness, before him. It is a sorry state that the BASL has not been vigilant and concerned on erosion of justice and human rights by the CJ and colleagues in all walks of life especially the Police and the underworld.

Let us now know the background of the legality of the PSC in terms of Parliamentary procedure. Sovereignty of the people is exercised by the people in terms of Article 4 of the constitution, in which judicial power, of the people is exercised by Parliament, through courts established according to the law.

Tourism and investment

This principle was reinforced by the ruling by Anura Bandaranaike, then Speaker, on the issue by the Supreme Court restraining him from appointing a Select Committee of Parliament regarding a motion for the impeachment of then Chief Justice about whom there were concerns that he is not suitable to hold the honourable and prestigious position that decides the fate of the citizens, country and reflect the image of the judiciary. It is now the legal and constitutional position that Parliament and the sovereignty of the people are supreme and the position of the judiciary is now demarcated and defined, while maintaining the independence and integrity of the judiciary.

“The 'litmus test’ on the independence of the judiciary has now come up again with a new controversy by the motion of a special general meeting in terms of Article 12 (A) of the constitution of BASL and under Article 102 of the constitution of Socialist Republic of Sri Lanka opposing the appointment of a Select Committee based on a procedural irregularity. Opposition to the Parliamentary Committee is not within the scope of the BACL . It is the duty of the members of this noble profession to be with the people and their aspirations.”

Therefore, it is time that the lawyers – members of this noble profession - act carefully and honorably considering the future in this crucial event when the country is heading for success in all respects. Our economy is booming, tourism is rising, stock market is rising and Sri Lanka day by day is becoming the most sought after place for tourism and investment. Therefore, Parliament should be given the due place and it is their duty and the prerogative to maintain justice as envisaged in Article 2 of the constitution, which is the section that originates the judicial system, including the court system. Now, at this juncture we need to maintain our international image in addition to economic developments.

There are unruly personnel everywhere with ulterior motives and we are sure the legal professional will not become prey for these mischief makers. We are sure they will restrain themselves and act carefully respecting the sovereignty of Parliament. Their duties are entrusted by the people of Sri Lanka.

Wonder of Asia

Citizens have the highest expectations on their rights guaranteed by the supreme law of the country, thereby, special emphasis is given to judicial independence and the supremacy of Parliament, which we are bound to protect and enhance.

We quote a stanza from the Dhammapada which will help the members of the Bar Association to make a decision in the interests of the nation and themselves by taking a sensible practical approach. On this resolution this motion is obviously mooted with ulterior motives of interested parties, politically and otherwise.

We quote a stanza from Dhammapada as guidance to take a decision at the next meeting at this juncture when our nation is on the way to be the Wonder of Asia, for which, lawyers are bound to play a major role.

“Not by passing arbitrary judgments, a man becomes wise. A wise man is one who investigates both right and wrong. He who does not judge others arbitrarily but according to the truth. One is not wise because one speaks much.

“One is called noble because he is harmless towards all living beings. May we be peaceful and love each other and pray.

“May individual and collective human rights be protected with the help and guidance of the noble profession and professionals”.