1 December, 2020

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BASL Resolutions And Implications

By Malinda Seneviratne –

Malinda Seneviratne

The Bar Association of Sri Lanka (BASL) adopted three resolutions yesterday relating to the impeachment of the Chief Justice.  In essence, the BASL requests that the President re-consider the impeachment, called for ‘the enactment of procedural laws in relation to the removal of judges of the Superior Courts while ensuring a fair trial by adhering to principles of natural justice’ before proceeding if the first request is turned down, and if the CJ is removed without such enactment and fair-trial guarantees to ‘not welcome’ the CJ’s successor.

The second and third resolutions clearly assume that the first (request) would be turned down.  The BASL implies in the second resolution that there is a constitutional flaw.  Calling for law-change in mid-process could open a legal and constitutional (if not ethical) can of worms.  Constitutions are not cast in stone, which is why there are provisions for amendment.  What stands has stood, for better or worse, for close to three decades without a murmur of concern being raised by the BASL or anyone else.  This raises the question, ‘Was the BASL ignorant of relevant articles in the Constitution all this time?’ There was politics then and there is politics now, this much is clear.  If the rules can’t keep politics out, then they need to be changed.  Not in the mid-process, not least of all for the bad precedent it sets.

The allusion to ‘natural justice’ is interesting.  Many BASL movers and shakers are also vociferous supporters of a query currently in the Supreme Court regarding the constitutionality of the impeachment process, essentially asking the CJ to offer determination on a case whose outcome may be detrimental to her interests.  That ‘violation of natural justice’ has not warranted BASL comment.  Neither has the BASL thought fit to observe that if current strictures are inadequate, illegal or violate principles of natural justice it follows that a CJ is unimpeachable, a sorry state of affair which rebels against the fundamental principal of equality before the law.

The third resolution is a threat, unadulterated.  It appears that the BASL, the governing body of lawyers, has erred on at least 3 counts here.

Firstly, Sec 41 (1) of the Judicature Act gives an Attorney-at-Law an unimpaired and unhindered right to appear before any court or tribunal set up for the administration of justice. Resolution 3 takes away this statutory right.  Secondly, If the CJ is impeached it would have been done both constitutionally and legally (never mind the morality of intent) and therefore the BASL has to recognize it.  Thirdly there is a Constitutional requirement for the President to appoint a new CJ and a new CJ would be appointed constitutionally and legally; therefore there is no ground for the BASL to not recognize a new CJ and to prevent lawyers from appearing before him/her.

The BASL has every right to engage in politics.  Responsibility and dignity cannot be demanded but only observed in word and deed and indeed breach of the same.  The BASL was political when its members, with or without the blessings of the body, turned the Supreme Court into a kattadiya’s carnival, and unknowingly or unknowingly gravely compromised the dignity of the post of Chief Justice by taking the politicization of the impeachment to a higher level.  How their high minded notions of ‘natural justice’ and ‘impartiality’ are served by appearing before a judge who they cheered and whose ‘nod’ they received, they have the intelligence to deduce.

It is easy to take refuge in the notion that if everything is out of order, it’s perfectly alright to be out of order ourselves.  BASL moves, despite all this, appears to be symptomatic of constitutional flaw no less pronounced than other articulations of the same errors.  It calls not for constitutional tweaking, but comprehensive constitution-review with a view to develop a fresh document, a 3rd Republican Constitution.

*Malinda Seneviratne is the Chief Editor of ‘The Nation and his articles can be found at www.malindawords.blogspot.com .

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Latest comments

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    Are you and Rajpal twins? :)

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      Yes, twin Rajapaksa arselickers.

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    First of all sir, i think ur articles are a mere reflection of ur stubbornly biased political viewpoint; which no one see’s any rationale in. Secondly u speak of a ‘bad precedent’ a couple of questions for u:
    * would it not be a bad precedent if the bar association maintained a mum in this whole situation, as u seem to suggest they should ?
    * Have u considered the consequences for the judiciary, and the judges if this impeachment succeeds, do u not think that a judge would think twice before being impartial thereafter
    * finally lawyers of this country have always been in the forefront to promote and protect the rights of the people notwithstanding political pressure; and isn’t this situation a bad precedent as the legal profession would succumb to political pressure if it is allowed to happen.

    U seem to be preaching about the rules of natural justice; but why haven’t u addressed the all important issue of the parliamentary inquiry against the chief justice? Do you not believe as any reasonable man would that this inquiry was one sided. Needless to say the CJ was denied adequate time to answer to her allegations, she was insulted and more than that humiliated, the opposition members presented conditions before their exit: all were refused and denied. forget of all other odds do you accept the procedure of the inquiry? do u approve the manner the CJ of the country was subjected to in this inquiry?

    This is the time to tell u that the people expect more from you as a journalist. Its ok to present ur personal opinion on issues but at least make it analytical and not completely one sided.

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    The chief kattadiya is your big boss. There are no others to beat him. Also the CJ pooja has already been done by the thakkadiyas at the Diyawanna.

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    I really do not want to engage in mudslinging and personalising. But really what has happened to our so called independant minded analytical journalists? Has the regime thrown a spell over them or bought them over? While good interventiona have to be clearly commended, we must be critical in our thinking and commentary. In this instance there is a clear violation of natural justice and process. We must see the dross for the gold and try to correct this. There is no point in shooting the messenger or those who are trying to right the wrong at this moment. So pointing a finger at the Bar Association (BA) is not necessary. If it has to clean itself, so be it. But that is a separate issue to do with institutional governance. In fact lots of institutions need to clean up their act not only the BA.

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      Visakha:
      You are addressing your question to the wrong person. Malinda Seneviratne is a xenophobic boot-licker of the regime and to even suggest otherwise is patently unjust. In case you didn’t know, HE IS THE EDITOR-IN-CHIEF OF A NEWSPAPER OWNED BY THE RAJAPAKSA FAMILY, THE NATION.

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    Of course Malinda is singing for his supper! So completely ignore him.

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    Malinda;

    Why crawl so much for MARA? Will you be rewarded by him or in heaven?

    While all kinds of things are going on, you are singing the tune of the Rogues? People like you should be displayed in the Muesuem of Natural Fossils as Crawling worms of the Feudal era!

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    These jokers do not know that Shirani Bandaranayake is like the proverbial crab in that pot of cold water where fire being lit under it.

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    Are you saying Parliament whose members are arse lickers of President can ignore the COnsitution and take on the Judical power. They can do away witha judical process and can hold Kangaroo court. BASL should respect all these rubbish. You bloody arse licker

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    Malinda is an unadulterated moron who should read the BASL resolution carefully. What the BASL decided on was not to WELCOME a new CJ if ts impeachment is proceeded with. The question of AALs not apearing before a court does not arise. Stupid. I was there at the BASL meeting and the President specifically ruled out any question of BASL calling upon lawyers not to appear saying that this was a personal right of any attorney-at-law.

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      Who cares if the BASL does not welcome a New CJ. BASL execeutive is all UNPers. Wijedasa Rajapaksa is a UNP MP. BASL has a membership of 11,600. But only 1600 had attended the meeting. According to its constitution Resolutions carried are not valid if the attendance is less than 25%.
      Further , BASL is not the govt. So it makes no difference if the BASL welcomes a new CJ or not.

      Dr. P.A.Samaraweera.

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        Hey P.A. kohede yanne malle pol! Do you understand the Sinhala language?

        Do you know the legal history of Sri Lanka. For more than a 100 years, the BASL has always welcomed a new Chief Justice. Departure from this tradition is not to be scoffed at except by yakkos like you who do not undersatd what it is all about. ‘Dr’ my ass! Ayurvedic doctor??

        Note – it is not Wijedasaa alone who is against this Have you not seen the Presidents and members of the Galle, Matara, Hambantta and Tangalle Bars on to the streers in protest? Thesse are all UPFA guys and former ardent suppoters of MR.

        No wonder he has got jittery!

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    Martin Niemöller

    “First they came for the Communists, but I was not a Communist so I did not speak out.

    Then they came for the Socialists and the Trade Unionists, but I was neither, so I did not speak out.

    Then they came for the Jews, but I was not a Jew so I did not speak out.

    And when they came for me, there was no one left to speak out for me.”

    Malinda does your Mother Bark!!

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