Shame, this politically divided Bar!

Balance of Power Tussle paves path to Imbroglio:

Vernon Botejue - Senior Attorney at Law

The Democratic Socialist Republic of Sri Lanka adopted her new Constitution in 1978 under the leadership of late J.R Jayewardene (Leader of the United National Party Returned to the National State Assembly with a massive majority) that enabled the Repeal of the existing Constitution and establish a Parliament with Legislative Powers (in place of the existing National State Assembly) the Executive with an elected Executive President (in the place of the Prime Minister) as Head of State and Commander in Chief of the military forces and the Judicature comprised of the Supreme Court, the Court of Appeal and the original Courts of first instance and other institutions to administer justice under the law.

It is evident that the three branches of the government, of a Sovereign Democratic State, viz: the Legislature, the Executive and the Judiciary were established under the 1978 Constitution with their respective powers and functions separately enunciated and set out in the 1978 Constitution that repealed the “Republican Constitution adopted and enacted on May 22, 1972.”

It is noteworthy, that the repealed Republican Constitution, contained certain features eg - Article 5 sub section (c) and Article 54: Which this writer notes, that if they had been incorporated in the 1978 Constitution, it is manifest that the ‘tussle for power’ that has erupted would not have arisen.

In the public interest, the foregoing provisions are re-produced herein verbatim: Quote:

“The CONSTITUTION OF SRI LANKA – 1972”.

‘THE PEOPLE, THE STATE AND SOVEREIGNTY’

ARTICLE 5 Sub Clause (c):-The judicial power of the people through courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein the judicial power of the people, may be exercised directly by the National State Assembly according to law. “Thus it is clear that the judicial power of the people may be exercised directly by the National State Assembly under the 1972 Constitution “in matters relating to its powers and privileges”.

Article 54:- “Constitutional Court”

Clause (!) “There shall be a Constitutional Court for the performance of the functions assigned to it by the Constitution. Constriction of space restrains publication of the entirety of Article 54 - that includes Sub-Clauses (2) (3) and (4) each of which contains several other sub-clauses.

This reference is made for emphasis that the Architect of the 1978 Constitution has granted these powers under the 1978 Constitution to the ‘Supreme Court’ having abolished The “Constitutional Court” that has paved the way for the current imbroglio.

In this dissertation it is not intended to discuss, any other issue or constitutional questions that arose in the wake of the adoption of the 1978 Constitution; that necessitated Eighteen Amendments to be adopted as at 2010; and since then agitation continuing with proposals made by registered political parties and others for further amendments to the Constitution relating to various Articles thereof ¨Nor is it the object of this discussion to return a verdict on the issue of the Impeachment motion of the ex Chief Justice that is now res judicata.

However since the issues and related matters involve and touch the People of Sri Lanka, The BASL (of which this writer is a Life Member and in active practice for over 64 years and has performed Judicial functions for over 40 years in an acting capacity), the State, Sovereignty, the judiciary and the Media, it is deemed necessary and expedient to consider and re-view the background to the current imbroglio, in an objective and dispassionate manner, to heal the wounds and evolve solutions to restore the status quo in the mutual interests of all touched and concerned.

It is evident that the issue of the impeachment motion in Parliament against the Chief Justice Shirani Bandaranayake, that was capitalized by the anti national elements and political opponents of the government both locally and internationally with the object to effect a “Regime Change” was given wide coverage both by the print and electronic media that blew up the issue - that serious disagreement and dispute has arisen regarding the balance of power between the Legislature and the Executive together against the Judiciary also an arm and part and parcel of the of the Government of Sri Lanka that endeavoured to assert superiority through Courts that were established for the benefit of the people as provided for under the Constitution and not for the benefit of those who presided therein to administer the process of justice between and among the people of Sri Lanka who had legal disputes and sought relief in the courts of Law.

The false publicity given was - that the Independence of the Judiciary was under attack, that the Secretary of the Judicial services was manhandled, and the rights and the freedom of the people and democracy was in grave danger and in a state of collapse and Sri Lanka was in peril heading towards an autocratic and despotic State that warranted.

Foreign intervention and (may be invasion) as history records - like what happened in Iraq and other countries of the world whose people have been plunged into an horrifying holistic calamity and to cause Sri Lankans to suffer once again what they suffered for over three decades at the hands of the ruthless Terrorist Organization - the Liberation Tigers of Tamil Elam.

It is no secret, that while local miscreants were kindling the fire, the media added fuel to the fire, acting on information and briefs given them by anti-national local opponents of the Government, in particular the LTTE apologists and its supporters and the opposition political parties craving for power and hoping to over throw the Government of Sri Lanka with foreign intervention, cashing in on this issue of impeachment of the Chief Justice, blowing up the issue that it was a threat to the independence of the judiciary “that is safeguarded and guaranteed under the provisions of the Supreme Law”; there being no written law to enforce the integrity of the judiciary except a legal maxim –That “justice must not only be done but appear to be done”.

How could the people feel safe and expect that justice will be done when the magistrates and judges of the courts of first instance joined issue and shut the doors of justice in support by an organized strike? In fact that prompted Justice Rohini Marasinghe then a judge of the Court of Appeal who had the right of supervision over the minor judiciary to make a public declaration that was published in the Daily Mirror newspapers, “that it was improper for judicial officers to do so”. It is now known to the public that the JSC has taken action to transfer those who were involved in the strike- And the story is now being spread that this is also an attack on the independence of the judiciary. On the other hand the litigants who suffered unnecessary expense, trouble and worry due to the strike say - “that they (judiciary) should feel comforted that nothing more serious has happened to them vis a vis the opinion expressed” by a Judge who had supervisory authority referred to above.

Adverting to the role played by the media in this connection: Certainly it was most disheartening and distressing news, for all honourable members of the legal profession, to read banner head lines in the ‘Daily Mirror newspaper published on Monday May 10, 2013 “MATARA BAR REFUSES TO WELCOME CHIEF JUSTICE” and soon after on the heel of this publication; on Wednesday May 15, 2013 the headlines on the front page of the same newspaper- “BASL SNUBBED”. “Not invited for ceremonial sitting, to welcome new SC judge”.

It is clear as daylight that the message conveyed per these headlines and the story developed beneath is politically motivated and confirms the averment aforementioned that newspapers add fuel to the fire and enjoy”. The message conveyed to the members of the BASL is “You are not invited” – so you don’t attend this felicitation meeting”. The following day feed the public “there were many vacant chairs’ vide news report on 16.05. 2013 regarding the felicitation meeting to welcome the new S.C. Judge.

The publication of the aforementioned headlines and the story beneath certainly causes pain of mind (in legal jargon “animus injuria”) to the members of the BASL who had no hand in the cause that caused the effect - ‘the publication’ of these news reports under reference as discussed below.

In the story developed under caption “Matara Bar Refuses to Welcome Chief Justice” it is reported that the spokesman desired to remain anonymous having stated the reasons for their bold stance for doing so. That makes one wonder why such timidity to remain anonymous - that casts a reasonable doubt on the story; if they had honourable intentions and made non partisan decisions, why remain anonymous after zealously detailing the reasons to the media, including the claim that they the Matara Bar was the first to assert the illegality of the impeachment of the former CJ: More over it sounds paradoxical in the light of the fact that it was a member of the Matara Bar who filed a fundamental Rights case in the Supreme Court opposing the appointment of this same CJ for whom they now say they stand up valiantly – the story is artificial and fictitious and malicious.

Thus the publication of this news item, under the criminal justice system, is breaking the law, as it is intended to disrespect the Supreme Court and dishonour in particular the Chief Justice in office and bring him into disrepute that is an offence - Contempt of Court that is punishable under the law.

In this connection it is relevant to cite the recent case in which a well known member of Parliament who was punished and suffered imprisonment for uttering words calculated to bring the Supreme Court into disrepute.

There is also a more celebrated case of the editor of a reputed newspaper in the colonial era who was punished for publishing an editorial comment that the Supreme Court held was contempt of the Supreme Court and was sentenced to imprisonment despite the brilliant argument of the most eminent counsel of the day Kings Counsel R.L. Pereira.

Adverting to the news item referred to above “BASL Snubbed” not invited, in breach of a tradition observed for nearly 200 years, affects not only the current President Upul Jayasuriya a prominent member of the U.N.P. who may be held responsible for actively contributing towards this untoward situation by acting in breach of the traditions of the BASL not inviting the Chief Justice and the Leader of the Bar Association the Attorney General: and adding insult to injury according to news reports inviting the Ex. C.J. for his felicitation meeting. In the premises it is reasonable to believe that the news report under reference is politically motivated and calculated to mislead the non partisan members who feel hurt and decide not to attend the felicitation meeting that the partisan members had already decided to boycott on the direction of the political leaders of the party they belong to. It is a well established tradition and practice that members of the legal profession attend such felicitation meeting to respect and honour the new Judge for which no invitation is necessary or required except perhaps that the Judge concerned may have a reception to follow and extend individual invitations or a general invitation exhibited in the court notice board or such other place for the intimation of the lawyers concerned.

The controversy and conflict among the members of the legal profession surfaced after an attack on the Secretary to the Judicial Service Commission by some goons that became a very sensitive and highly politicised issue that the political opponents of the government cashed in on to accuse the government that it was responsible for this attack and interpreted that to be an attack on the independence of the Judiciary. That was pursued by the politically oriented members of the U.N.P. In the BASL and others with personal agendas to discuss and debate the issue causing serious dissension and conflict among the members of the Bar.

The dissension and conflict worsened after the introduction of the more controversial political resolutions in contravention of the BASL Constitution being moved under the hand of the President Wijedasa Rajapakse that included the Impeachment Motion of the Chief Justice Shirani Bandaranayake that was placed before the BASL Bar Council for debate and decision.

It was evident that the subject matter of the resolution was contrary to the provisions of the BASL Constitution that was in breach of the objects of the Association enshrined under “Article 2 (c) the promotion of good relations and co-operation between the Bar and the public, the Legislature, Judiciary and the Executive and Lawyers of other countries.” How can members give effect to this object by partisan action and dividing themselves on to two sides as directed by the President Wijedasa Rajapakse on the Issue of the Impeachment motion? It was no secret that he was acting on the brief given by foreign N.G.Os. as confirmed by a news report in The Island newspaper. A large section of the members of the BASL opposed discussion, debate and vote on the matter of the impeachment in the open BASL Auditorium on the grounds that it was sub judice. Moreover it was urged that there was a precedent to be followed that the BASL had observed in the matter of a previous impeachment motion tabled in the house against the 42nd CJ of Sri Lanka that was rejected by the BASL.

But the Parliamentarian President, designated by The Island newspaper as the ‘Cope Crusader’ who had accepted a Brief from foreign NGOs ruled out the preliminary objection raised by this writer and allowed the controversial impeachment motion in Parliament to be debated amidst the unruly behaviour prevalent in the house. And thereafter in an autocratic manner directing those who disagreed to get out of the house, (that was done by this writer and several others) proposed resolutions from the chair: Called for a vote per physical division of the house, and not by secret ballot or show of hands as usual; Thereby as directed by the Chair the members moved out on to two sides of the house and thereby permanently destroyed the unity of the BASL and publicly demonstrated to the world the untoward situation. But the media acted on the statements made by the President and published his pronouncements.

Consequently this situation led to the Vice President tendering her resignation and the President Wijedasa Rajapakse himself deciding to stand down without running for a second term that he was privileged to do under the Constitution, in breach of a tradition as he had foreseen the result if he did contest.

It was manifestly evident that the BASL was politically divided and members were acting not on the merits of the issues involved but according to the directions of the political; party they belonged - that has caused irreparable harm to the BASL.

After the recent elections of office bearers for the ensuing year 2013 - 14 the disunity of the BASL has further deteriorated; as the newly elected President in breach of traditions conducted his ceremonial induction meeting sans the Chief Justice and the Attorney General who is ex-officio deemed to be the Leader of the BASL.

It was also evident that the President had intentionally failed to invite the members of the Bar Council who were not members of his political party.

In the premises it is clear that the BASL is politically divided and in peril unless remedial action is taken by the divided and splintered groups who must agree to abandon their parochial, political and personal agendas and decide to give effect to the provisions of the BASL Constitution. “promote good relations and co-operation between the Bar and the Public, the Legislature, Judiciary and the Executive and Lawyers of other Countries”. “And maintain the honour and independence of the Bar of Sri Lanka” and uphold the first object of the BASL as set out in the Constitution.