By Lal Wijenayaka –
Lal Wijenayaka
The series of events which are naked attacks on the rule of law and the independence of the judiciary in the recent past are well recorded. These events culminated in the unprecedented action of the JSC chaired by the Chief Justice and constituted of two other Supreme Court Judges releasing a statement to the public through the Secretary to the commission. In whatever way one looks at the statement, it is the expression of the displeasure of the JSC on the interference of the executive in the discharge of its constitutional functions. There is no doubt that this unprecedented move stemmed from the unprecedented happenings of the recent past.
Lawyers are the persons who will be most affected by any outside interference in the enforcement of rule of law and the independence of the judiciary. Lawyers could perform their professional duties with dignity and self respect only under a system where the rule of law and independence of the judiciary is respected. In a legal system where the rule of law and independence of the judiciary is trammeled as far as the professional duties are concerned they cease to function as lawyers and become mere ‘brokers’ in the system. Therefore, the preservation of the rule of law and independence of the judiciary goes to the heart and core of the profession. No member of the legal profession with a conscience can compromise in any way with these developments.
The BASL as the professional body of the lawyers has a paramount duty to safeguard Rule of Law and independence of the judiciary against the attacks on the rule of law and the independence of the judiciary and to protect and promote the rule of law and independence of the judiciary.
In the midst of the serious and alarming events that has come to pass, it is saddening to see that the BASL has failed to act positively and meaningfully against these events that has dealt unprecedented blows on the rule of law and the independence of the judiciary. It has to be said that this has being the case not only under the present leadership of the BASL but for a considerable period of time. The failure to act during Chief Justice Sarath N Silva’s tenure in office is a glaring instance.
It is not that the BASL did not do anything, but that the BASL has failed to do anything more than issuing statements condemning these attacks and expressing its concern.
These forms of protest would have even sufficed if these incidents were isolated incidents which are deviations from the norm.
But unfortunately it is not so and these series of events has shown a pattern, a system and repetition. It has reached a stage where the BASL is obliged to go beyond the mere issuing of statements and going into discussions with the authorities concerned.
The time has come for the BASL to go to the people and educate them, enlighten them and get their backing for a campaign to force those responsible for the present state of affairs to refrain from such actions.
It is the people who are souverign and it is for the BASL to take these serious developments to them. There is no issue in discussing these matters with the authorities concerned. The view of the BASL seems to be that there should be a compromise between the executive and the judiciary. What is meant by this ‘compromise’ is not clear. The only compromise should be that the executive and the legislature should respect the Rule of Law and independence of the judiciary as proclaimed in the constitution and upheld in the constitution. There cannot be any other compromise short of this.
A suggestion made at the meeting of the Bar Council, that the BASL should go to the people to explain and enlighten the people on these issues was not even considered.
The very successful manner in which the university teachers under the FUTA, was able to take their cause to the people and to muster the people behind their cause is an example worth emulating. FUTA was able to carry on their campaign in taking the crisis of education to the people with much force in a dignified and enlightened manner worthy of academics. Now almost every household in Sri Lanka is aware of the crisis of education.
Every household should be made aware of the crisis in administration of justice which is more serious and goes to the very fundamental question of upholding the constitution and Democracy.
Democracy cannot stand minus rule of law and independence of the judiciary.
Senaka / November 8, 2012
Quite right!
The bar association seems to be following the shameless Ranil Wickramasinghe’s gag order! The main opposition party, the UNP has failed too – to tell the people what a dastardly act this impeachment is
Ranil the other power hungry dictatorial creep has silenced the UNP and prevented them speaking out and standing up for what is right, by tip toeing around as if silence will save the judiciary from the Rajapakse attack! Ranil is actually tacitly supporting Rajapassa so that he may remain head of the UNP whose party members detest this record holding loser of elections!
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Senguttuvan / November 8, 2012
I was surprised when Wijedasa Rajapakse won the coveted position at BASL. Having heard him and talked to him I found him a pleasant decent man but somewhat poor material both as Senior Counsel or as head of
BASL that has had brilliant QCs and PCs in the past 3 decades. I am told he is a good lawyer in the vernacular. He is far too involved in sinister politics – having traversed the depths of both the SLFP and UNP – to be given the reins of an important and vital position at a time in the history of the country such as this. I recall how Harry Jayawardena and Desmond Fernando lead the BASL during turbulent times against regimes unfairly hostile to the legal fraternity – only because they did not carry the dictates of the day for the regime.
Senguttuvan
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Justice / November 8, 2012
The BASL should have the confidence and respect of the citizens who are most affected by deficiencies in the Rule of Law.
But,do the legal fraternity enjoy such confidence and respect?
Ask any litigant whose ‘case’ has been postponed umpteen times, or those whose friends/relatives are in jail without bail.
Rule of Law is necessary for citizens to exist,and not for lawyers to practice.
In fact,the more the cases are postponed, more the law is flouted, the more the lawyers prosper.
A few educated citizens are watching this ‘quarrel’ between the government and the judiciary,and the ‘common man’ does not understand what this is all about.
The common man wants to live in peace,and does not wish to get involved with police, lawyers or courts.
The common man is more aware of politicians and their antics than with nuances and niceties of the Rule of Law and Independence of the Judiciary.
Parliament has many lawyers than other professionals. If the government is not enforcing the Rule of Law,the lawyers in parliament are mainly responsible, in their roles as MPs & ministers.
So also is the case, of the government’s proposed action on the Chief Justice.
Lawyers are thus divided,into those in parliament, and outside parliament.
FUTA now complains that all that was promised by the government is not being implemented.
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N .Wimaladasa / November 8, 2012
BASL has turn political motivaed orginization of UNP political outfit.
Sorry to say afterDr Wijedasaa Rajipakasa taken helm ofBASL Top position, its tole of Independence of Working methods have been dissaper.
Case like Imperchment aginst CJ’s BASL is on partial on side of corrupation charges.BASL has address issue on Lawyer and Justice of positive approch.
The salient features of development of BASL such move will lost asprtaion of public life and diviated from’ ENSURE THAT ALL ARE EQULAITY BEFORE LAW,THAT NOBODY HAS PRIVILEGE(EVEN CJ) OF NOT OBSERVING IT AND THAT HAD ON EXCEPTION SHOULD MADE IN ITS ENFORCEMENT”.
BASL must appear on behalf of CLEAN JUSTICE of OUR COURT OF LAW and maintain discipline of Judges, Lawyers as well.
Other wise public will lose confidence Justice system and Legal system be totally collpaes.This will harm to Justice system of courts in island.
Legal and Justice order is the one of main pailler od Democrtaic Goverance of Sri Lanka.
BASL still far lagged behind of her role of evlutaing INDEPENDANCE of Judiciary!
After Dr Wijedadsa Rjapakese take over the President of BASL role has become more political -oriented outfit and ongoing crisis of Judiciary has been overlook.In other word BASL has unable face and totally fail seek amicibal soluation to battle between Legaistaive and Judiciary
In my opion BASL follow policy of who ever they are,and what ever power or official position of Judiciary,they have must be brought TO JUSTICE WITHOUT MERCY.
Prevent and fight against corrupation more effectively and in more democratic way and enrich leagel justice system we need to be follow ….NO ONE IS ALLOW TO PLACE ONESELF ABOVE THE LAW OF OUR LAND.
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Pandukabaya de Silva / November 9, 2012
He is NOT a doctor though he has been trying hard to get one even though he cannot write a decent sentence to save his life!
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Rain / November 9, 2012
Most educated decent Sri Lankans’ have left the country disillusioned with the corrupt political system. Majority of those who are left behind are totally ignorent of the prevailing situation then there is a fraction of those who are aligned to the ruling party for personal gains and live like ostriches with their heads buried in the sand. The decent living educated minority have given up and have become resilient to the corrupt system. Until the majority of those aforementioned ignorent people wake up to the reality nothing will happen. Ruling party will make sure they are kept that way for their gain. It is a sad situation but I cannot see how we will ever escape this. Current regime is one step ahead of everything and heavily militarising the country. There is no law and order and the biggest lunacy is they are trying to impeach the CJ probing into her finances when the politicians and their hangers on are daylight robbing the country. I am truly amazed at what has happen to Sri Lanka. We were a very educated society once upon a time and now the whole country is in shambles and majority of the people are not even aware of it.
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Wuliangguobinjiu / November 9, 2012
The local politicians are very good at doubles and trebles because as kids they recited Assaya Gon Tik Tik Tik Hava…
Therefore you can be rest assured another 30 or 60 years before the regime crumbles by itself as there is nothing important for the outsiders except China maybe but then it becomes LanCom like ChiCom.;)
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Rain / November 9, 2012
Most educated decent Sri Lankans’ have left the country disillusioned with the corrupt political system. The majority of those who are left behind are totally ignorant of the prevailing situation. There is a fraction of those who are aligned to the ruling party for personal gains and live like ostriches with their heads buried in the sand. The decent living educated minority has given up and has become resilient to the corrupt system. Until the majority of those aforementioned ignorant people wake up to the reality nothing will happen. The Ruling party will make sure they are kept that way for their gain. It is a sad situation but I cannot see how we will ever escape this. The current regime is one step ahead of everything and heavily militarizing the country. There is no law and order and the biggest lunacy is they are trying to impeach the CJ probing into her finances when the politicians and their hangers on are daylight robbing the country. I am truly amazed at what has happen to Sri Lanka. We were a very educated society once upon a time and now the whole country is in shambles and majority of the people are not even aware of it.
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Safa / November 9, 2012
The silence of the BASL on an issue that affects the justice system is puzzling. Either they are taking sides or are complicit in this advised action. There were reports that two officals of BASL had a private meeting with the president prior to this.
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N .Wimaladasa / November 9, 2012
The current Sri lankan justice system its court of law which always guradrd by indepenence so fair paly assiduously.Once again found itself in the corrucaption camp of Judges experss sever doubts about the route that the Justice plans to take.This time imperchment they are right.
There are other serious issues too.The Parliment is trying to find ways to protectd the Rights and Values of Justice in Sri lanka.
But I think very complexity of what is proposed show just how inadequtate the scheme is. In partiuclar may find the entire imperchment process abstruse.But it illustrates a simple point;Governmnt try to achive ,trying stronger model of Justice that responds to weaknesses of Democray of Parliament,Execative and Judiciary of revealed by the policicial-economy-social crisis of our system.
But it is doing so without assressing the crucial issues need to bring its public along. When democratic system and politiac parties (Ruling and opposition)reduce or rejects public and masses claim as in now happing in Sri lankan,the pursit of invividal or few gropues become more contentious be destrucative.
The proposed Imperchment against CJ fundamental meet make unremitting efforts to combacts corrupation and promoate INTERGRITY and STAY vigilance against degeneration of independance Justice system of our Island.
But prevent and fight corrupation more effectively and move forwared for improved Democracy way of life more complex.It is diffculit to be optimistic about the sucess of an initiative bulid on such flimsay legal foundation and lacking democratic goverance and its legitmacry. And we must ensure that all are equal before the law of Land, that no person has spcial privilege of not observing it and that no unique exception should be granted by its enforcement.
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Kumar Senadirajah / November 9, 2012
BASL has turn political motivaed orginization Sorry to say after Wijedasaa Rajipakasa(MP-Former SLFP-then UNP)) taken BASL Top position, its tole of Independence of Working methods have been dissapear.There is no law and order and the biggest lunacy is they are trying to impeach the CJ probing into her finances when the politicians and their hangers on are daylight robbing the country.What is Divi Naguma Bill Collect all the funding in to Center.(To Brother Basil in charge)CJ’S husband’s appointment( Director -Chairman -NSB ) are all well planed corrupt Political plots.Former University Lecturer Appoint as a Judge of SC.-Then C.J. why all of sudden they want to sack.But Neelakanthan playing very well. Keep it up.CJ is in your hand.
-Now she is trouble .Helped her to protect.Ad…Adda..Play Nella very well.
Kumar
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Senguttuvan / November 9, 2012
Pandu – You put it so attractively. But how did many thousands in the legal fraternity vote for him?
Senguttuvan
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Pandukabaya de Silva / November 10, 2012
@Senguttuvan – the thousands voted for him because they ae all easily motivated by personal benefits and by what he promises. These are not the old lawyers of yore who had integrity but crooks come from bad backgrounds and who are out to make money by any means.
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Kamal / November 9, 2012
Ponna Bar Association will never done anything positive. They have proved through their past conduct that they do not have a spine and appreciate only the way of boot licking
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sudharman / November 9, 2012
Indeed you are right. There must be strong and pro-active engagement and take on the play boy executive who is just playing with the very institution that would gurantee the soverenity of the people. Is there anyone with a backbone to take on the executive that has created a constitutional crisis in the country. The legislature talks nonsense without being even able to frame charges properly andnow they want jusdicial powers as well to look into the matter. A constitutional jargon indeed. Believe me their days are numbered. But those of you who got a backbone to safeguard the independance of the profession please take to streets and engage head on with that executive rascal.
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Senguttuvan / November 10, 2012
Pandu – I agree. It is a sensitive subject but “background and calibre”
matter immensely although the very mention of these create argument. But the fact was when society insisted on these we got a better product in the form of government servants. I remember in the old days when even a P.C. applies to join the Police force fairly deep investigation is done into the applicants background including personal visits by Police officials to the applicants home – irrespective of how far and isolated it may be. The result was a relatively reliable and decent police force. So it was in respect of recruitment into most Govt services.
Look at the shocking and shameful issue of the Welikade armed riots yesterday. The BBC highlights in its world service today telling all what our law and order situation has come to. It is largely the responsibility of the ruling clique – who openly hobknob with crime lords, drug traffickers, proffesional kidnappers and the like. The Bharatha Luxman-Duminda Silva warfare is as a result of the ruling gang taking sides. Why? To share the spolis say many in the area. Shame.
Senguttuvan
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Uthungan / November 13, 2012
The exercise of arbitrary power by government is contrary to the ‘rule of law’.The true mark of a despot is, he can set aside the existing laws.If laws are to be plausible as legitimating agents they must not be partial or unjust.When a despotic government makes laws to change existing laws there is always the possibility of challenges by judges because judges however much they may share the aims and values of such a government are not government servants and the challenge may sometimes be successful.
This is exactly what is happening in the country at present.
There is in a sense,however far it falls short of what is claimed, in which those who exercise legal force, have to face up to the existance of a judiciary which is prepared to prevent attempts to unjustly deviate from the accepted laws which are part of the existing constitutional framework.
The Bar Association as a professional body is an essential component in the administration of justice in the country.It members consists of lawyers who are all part and parcel of the system to administer justice.
Far more than the judiciary the freedom and democratic values of our society rests on the vigilence of a free media,trade unions,and human right activist forums,civil society interests and professional bodies like the Bar Association to set the barricades on unjust and unlawful authoritarian tendencies by a government which has manipulated elections and obtained a parliamentary majority by bending the rules to it’s advantage with the help of a retired CJ who heled to damage and wreck whatever semblance of any democractic values that remained after the demoliton job that JRJ carried out to materialise the 1978 constitution.
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