25 November, 2020

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15th Of December; A Day To Remember

By Basil Fernando

Basil Fernando

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.

“The President of BASL formulated the resolution based on the two sets of resolutions that have been received. He presented it to the House. In summary the resolutions had three items:

(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.

The times they are a’changing. Hopefully a better time is beginning.

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Latest comments

  • 0
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    The needed change has to be articulated by all those who are know taking interest and give a lead to the people without leaving to any one of the political groups or leaving it to happen on its own. Rally the people round and agitate for the change.

  • 0
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    I have two querries…

    1. What if MR appoints the head of bar association the next CJ?

    2. What if the lawyers lead the people without the support of politicians & change this constitution & pave a new path to democracy?

    Someone please give a proper answer

    • 0
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      Latif,
      I venture to answer your first question.

      Certainly if the BASL president has qualities like the present Minister of Justice, he will go back on his recommendations.
      But I doubt it. There are many sycophants in our country, but this BASL president.

  • 0
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    Govt has to learn to uphold the constitution, independence of the judiciary, freedom of expression and the rights of all Sri Lankans.

    A strong and independent judiciary will no doubt uphold the law and ensure that no one is above the law. The bar and judiciary should act to rescind the bad judgements of the past. Especially the judgements against General Sarath Fonseka and approval of 18A. All outstanding cases must be completed within the next six months. The killers of Lasantha Wickrematunge must be brought to justice. PTA must be withdrawn.

    A strong legislature is a vital requirement which is independent of the executive president. These two should act separately and independently to uphold the sovereignity of the people. 18A needs to be repealed. AG’s department must revert to the Ministry of Justice. Parlimentarians must act in a decent and responsible manner. The political culture needs to change. No crossing over for ministerial portfolios etc. Vote according to conscience not on party lines.

    Executive must relinquish his powers. He must shed the portfolio of Minster of Finance. He must ask his brothers and relatives holding public position to step down. Appointements to the public sector must be under 17A. President must not be immune with regard to his mishandling of public money and violation of human rights. Any ordinary citizen must be able to take action against the establishment on account of these two. The problem of the Tamils need to be addressed.

    The list goes on and on. There is so much to be done if Sri Lanka is to be put on the right track.

    • 0
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      and the Police should be taken off the Defence Ministry.

  • 0
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    I congratulate SL Bar Association in its endeavour to protect the democratic rights of people of Sri Lanka. These freedoms are eroded by successive governments of all colours and under the present governments watch, the changes are vicious.
    Well done
    May you be blessed with courage, honesty and integrity to continue the task in hand

  • 0
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    We are proud and thankful to SL Bar Assocition standing by Hon. CJ and to protect Justice and Democracy in Sri Lanka from absolute Tyranny and Dictatorchip.

    I am also proud of the Hon. CJ for standing by her Morals and Values that we Citizens expect from her and for Safeguarding Citizens rights regarding Divineguma Bill, while her husband been fired and humiliated from his job for no fault of his own, and while knowing that she could also loose her job for not authorizing and giving into this mega 85 billion rupee project going solely under Corrupt President’s brother’s control….and standing by the Citizens for the betterment of the country.

    Had she authorized the Bill the absolute Dictatorship could have taken control both political and economis of the whole country where citizen could hav ended up under another IDI AMIN type regime.

    Therefore it is the obligation of every one who loves the country to come into assistant of Madam. CJ, the SC and the SL Bar Association, to safeguard our rights, liberty, justice and democracy.

    Madam CJ could have easily authorized this MEGA BILL AND ONCE AUTHORIZED COULD HAVE ENTITLED FOR A FREE SUPER LUXURY HOUSE IN THE HEART OF COLOMBO, A LUXURY CAR, A FAMILY VACATION TRIP FOR ONE MONTH ANYWHERE IN THE WORLD PLUS ENOUGH MONEY TO RETIRE HAPPILY FOR THE REST OF HER LIFE, AS A GIFT FROM “ABOVE” FOR HER “GOOD WORK” FOR HIM.

    This is the usual practice which I could prove with evidence if anybody interested to know. Giving a gift of a luxury car as a wedding gift to anyone ‘known’ is nothing for the President….as he has to act as “MAHARAJANO” and the gift should resemble his status. I hope you agree….

    1)The other day Ex. CJ Sarath N. Silva told in Rathu Era, that he PLEADED with President not to go ahead with the “Hedging Deal”…… and it went so far that he…CJ SNS finally GAVE IT UP…….why…why….
    Now the amount we have to pay is Closer to ONE BILLION DOLLARS ….AND COUNTING INTEREST EVERY DAY WE DELAY.

    2) I have a three bedroom house and the usual fridge,TV and an Iron and few lights. No A/C. My monthly electrictiy bill is Rs. 2,400 average.
    Just imagine when the Mattala Air Port is built….just to A/C the whole building 24 hours a day , supply free water for restrooms,pantry and dining rooms, staff quarters, 24 hour lights in the whole building, lights in the roads, runways, Logistics,transport, maintenance, carpark etc…etc……ALL UTILITIES TO BE PROVIDED FREE WITH NO INCOME GENERATING…..How many planes should land just to cover the marginal cost alone….Who bears these cost…..and loss.Even in Katunayake airport the temperature (A/C) is warm in the departure lounge. Just imagine in HAMBANTOTA……

    3) Similarly Hambantota Port…..how much the maintenance cost and how much the revenue…..If anybody could answer.

    Many more I could write.

    But while all these are taking place ….the TV shows how in a village the people have to cross a stream, water down to their shoulders to go to other side every day FOR THE LAST THREE YEARS, even to go to schools, market, hospital or even to bury their dead…..after collapsing a bridge…not repaired for three years.

    4)There is a saying that a WISE KING ACCOMODATE AND ACCOMPANIES ALWAYS WITH LEARNERD AND WISE MEN……. AND A FOOLISH KING IS SURROUNDED BY FOOLS AND KILLS THOSE WHO ADVISE HIM.

    But…..the President is more comfortable surrounded by grade nine school dropouts,half educated lawyers and Kelaniya Rajas and mere chartered accountant as CB chief….and other Ministers and corporate bosses…… why….why….why…..Think Deep.

    Because by placing all these at correct places the King COULD DO WHAT HE WANTS, WHAT HIS SIBLINGS WANT, WHERE HE WANTS, WHO HE WANTS AND WHENEVER HE WANTS……WITH HIS COUNTRY……..Period.

    This is the easiest way for Rajano to become Gasano….

    HOPE WE SRI LANKANS ARE NOT THAT UNLUCKY.

  • 0
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    Mr S.L.Gunasekera is a true son of the soil who fought resolutely against the LTTE.When he backed Mahinda and when he won he did not run to get a personal benefit.Some succumbed to such temptations that the crafty dishonest Mahinda thrust on them and two victims were Asoka silva and Balapatabendi.Both are shameless rascals who let the honourable profession down.Asoka Silva established a world record weeks after retirement to take a job under Mahinda.Even the CJ must be regretting today for agereeing to the offer he made to her spouse.This is how he operates.
    This matter must be fought to and end towards the creation of an independent judiciary and agitation must continue to abolish this Presidency till then some mechanism is created where he will be answerable to the people through the judiciary

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    15th was a D’day to basil & AHRC as they cash in on others carcasses.
    .
    A day the Lawyers exposed their side of hooliganism and displayed they were able & capable street fighters with fistcuffs flowing.

    • 0
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      Ridiculous.

      They sat, debated and came to a decision. The lawyers in Sri Lanka finally take a stand to peacefully stand for the rule of law, and all you can think about is how to run ’round ruining it.

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