4 December, 2020

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Murder Of The Judiciary

By Tirantha Walaliyadda

Tirantha Walaliyadda PC

We are not final because we are infallible; we are infallible because we are final,” said a Chief Justice of the United States referring to the Supreme Court. This statement was referred to by Chief Justice Asoka de Silva in his ceremonial address to the Bar upon his appointment as Chief Justice. Now we find judges’ houses being stoned, courts being attacked by the public and even excreta being thrown at judges within the court as well as police stations being besieged by the public in protest of action or inaction by the said institutions. Why is this happening? Is it fault from within or without or both?

The business of law may be placed in two broad categories: law enforcement and the administration of justice. Law enforcement is the business of the police and the Attorney General and other departments involved in crime investigations. Administration of justice is a matter for the judiciary. Facilitation of the administration of justice and law enforcement is the responsibility of the Bar. Failure or apparent failure in any of these areas will inevitably lead to discontent and frustration within the public with the end result of violent reaction by the public. Maybe it is time that the powers that be looked into these matters with seriousness of thought and perspective without pursuing an indifferent and self serving course which will surely end in a bloody and destructive confrontation which, at the end of the day, will serve no purpose to anyone.

The judiciary, law enforcement, and the Bar comprise the backbone of the democratic system. But when the Bar boycotts the courts for whatever reason, and if the judiciary accommodates such trade union activity by the Bar with a big hurrah, where does it leave the litigants who have come desperately to court in search of maintenance, divorce, bail, custody of children, and other urgent applications? And, when the Bar deserts the litigants in a frenzy of indignation for whatever reason what becomes the litigants and their woes and their Constitutional rights for which they retain lawyers?  Where legal remedies are available in a particular situation the Bar should, in my view, pursue those remedies instead of resorting to rash and rowdy conduct such as boycotting the courts and taking to the streets thereby causing havoc to the legal system in a democratic framework, which system within that framework must remain stubbornly immovable, unemotional, confident, and stable. What is the message that the Bar is sending to the public?

In terms of law enforcement and the administration of justice, corruption comes in two forms: intellectual and material. Intellectual corruption occurs when the law is twisted by the administrators of justice and law enforcement in great expectations. Material corruption in basic terms occurs where the law is twisted for monetary gain in whatever form. Portia’s judgment against Shylock in The Merchant of Venice was intellectual corruption. So also was the judgment against Socrates as recorded in Plato’s Apology where Socrates was sentenced to death by a biased and vengeful people. Intellectual corruption ends where material corruption begins.

A judiciary without a conscience is a judiciary no more. It becomes a piece of machinery and in terms of the State, it becomes an instrument of State power to be manipulated at will and justice falls by the wayside causing irreparable damage to the social structure in which it functions invoking the wrath of the people and pushing the nation into a state of lawlessness and anarchy.

The law should not be abused by its keepers or by its administrators or by its enforcers. The law is for the protection of the sovereign rights of the people. Passing dozens of laws is not the answer to the problem. It is the effective and impartial enforcement and administration of them that should be safeguarded. It is also the duty of the Bar to secure the rights of the people in terms of the Constitution which does not endorse the abandonment of the people in a so-called righteous indignation of the alleged acts of a few.

Contempt of court falls into two categories; those committed in the presence of the court and those committed outside. Where contempt is committed in the presence of an original court, the culprits may be dealt with summarily by the same court. Where contempt is committed outside an original court the action for contempt has to be filed in the Court of Appeal. Where contempt is committed in the presence of the court then the court will direct the law enforcement authorities to arrest and produce the alleged perpetrators and deal with them according to law in terms of summary procedure which is a show cause action. Where contempt is committed outside the court, action will be filed in the Court of Appeal and the Court of Appeal, if it considers appropriate, will take action on the issue. In a case of contempt in the presence of and before an original court the judge is not an aggrieved party: the contempt is not against the judge but against the authority of court and a court has no individuality. It does not belong to the judge but is a part of the judiciary which is called upon by Parliament to exercise the judicial power of the people in terms of the Constitution. As such, in matters of contempt, the Bar should not represent the judge but it may represent the judiciary. If not, the judge comes under obligation to the Bar and thereby loses credibility in future legal matters before him or her.

These are matters which the judiciary and the Bar should consider carefully before stampeding into glorious action with sound and fury.  It may well amount to another version of the Charge of the Light Brigade by Alfred Lord Tennyson.

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Latest comments

  • 1
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    When lawyer Tirantha Walaliyadde stood up in court and said that he appears for Potta Naufer – later convicted of the murder of High Court Judge Sarath Ambepitiya – all lawyers in court hooted him.
    But the judge did not even clear the court,nor did he hold them in contempt of court.Such omission/disregard of/for contempt proceedings against the ‘hooters’ was injustice.Neither did Walaliyadde request same.
    Interestingly, President Chandrika Kumaratunge visited the murdered judge’s widow on the fifth day after the murder,even before indictment had been filed,and handed over Rs.5 Million as “compensation”.She did not state what the compensation was for!
    No lawyer protested against this unlawful act of the President.
    The law courts are clogged with over 65,000 pending cases.This is an injustice against all the litigants.
    The Bar does not appear to be bothered about this situation.
    Magistrates routinely remand persons produced before them by police,without ascertaining the truth of the matter by conversing with the accused in private,according to the law.This happened earlier.
    Even persons who are obviously injured,are remanded.
    Cash/Surety Bail is not considered – by asking the accused whether he can provide same – his/her relatives in court would surely come forward.
    There is a new entity called “police bail”.Are police entitled to “grant” bail?
    A magistrate in Kayts issued summons in a format suggestive of ‘criminal proceedings’ to a University Professor who had merely protested against election malpractices.
    The professor,warned by his lawyer friends, fled abroad,avoiding “Jail without Bail”.
    The bar took no notice.
    Citizens need justice from courts,from lawyers and from law enforcers.

    • 0
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      Sam now that you have mentioned, about Judge Sarath Ambeypitiya’s murder, I wish to bring to light certain matters that never surfaced at that time. For those who have forgotten as usual in this society, The asailants had consumed alcohol heavily at a Restaurant beofre embarking on the assasination. Arriving close to the residence of the Judge, one of the assailants, now introduced as Potta Naufer had vomited where their vehicle had been parked. In this drunken stupor they walk up to the garage of the Judge’s house and shoot the Judge and the Police Guard. Thereafter they escape. The first person to appear at the scene of murder is none other than the former CJ Sarath N Silva and makes a public announcement that Judge Sarath Ambeypitiya was hearing some important cases against some Drug Dealers. The Police find the vomit matching of Potta Naufer’s, through a test of DNA and also the waiter at the Restaurant identifies Potta Naufer as one of the crowd who were drinking at the Restaurant. What evidence for an ‘Open and Shut Case’.

      Now I will shed some background to the whole matter. Justices Sarath Ambeypitiya and Samith Silva were contemporaries in the Judiciary who worked independently of pressures brought from CJ Sarath N Silva. Life was made very hard for both Judges by the CJ. In disgust Samith Silva left the Judiciary and took up post in a foreign country and had requested Judge Sarath Ambeypitiya also to follow suit. Much against the advice of Judge Samith Silva, Judge Sarath Ambeypitiya continued and started to collect evidence against the CJ Sarath N Silva and much was discovered of CBK’s transactions as President. Judge Sarath Ambeypitiya was privy to some hard evidence against both Sarath N Silva and CBK. Then strangely Judge Sarath Ambeypitiya is assasinated to find the Drug Cartel responsible.

      Points to ponder.

      1. Will the assailants drink at a Restaurant close to the scene of murder to leave traces behind for a waiter to identify?
      2. For a drunk to be intoxicated to the point to have vomited near the vehicle parked a little distance away from the Judge’s residence, to stagger to the house and commit this murder and get away?
      3. Judges’s Police Guard who had a weapon could not confront the assailant who was a drunk?
      4. The vomit near the vehicle was usefull to substitute Potta Naufer’s saliva itself to be forwarded as the sample. Then will it ever differ in the Report?

      Judge Samith Silva is still living for this case to be reopened. Potta Noufer and crowd are no Angels as they are Drug Barrons, the majority of whom were in cahorts with former CJ as the House Keeper at the Judicial Service Commision Bungalow who was involved in the contract killing of Godagama, the Proprietor of Royal Park Cafetaria at the Royal Botanical Gardens Kandy.

      I like to conclude with the following with due respect to Chris Hedges as I have added a few for his lines of THOUGHT.

      We live in a Society, where

      Doctors have destroyed Health
      Lawyers have destroyed Justice
      Acedemics have destroyed the Universities
      Universities have destroyed Knowledge
      Governments have destroyed Freedom
      Media has destroyed Information
      Clergy has destroyed Religion
      Religions have destroyed Morals
      Banks have destroyed the Economy and
      Politicians have destroyed the Society.

      • 0
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        Quoting from writers contents:

        “As such, in matters of contempt, the Bar should not represent the judge but it may represent the judiciary. If not, the judge comes under obligation to the Bar and thereby loses credibility in future legal matters before him or her”

        if the Bar may represent the judiciary, in a situation such as of ours – where judiciary is not independent, why is that lanken Bar seems to be paying blind eye in terms of many crime investigations in the country today.

        Why cant authorities appoint independent police commission and independent judiciary ?

        Gamini, I wish you could please comment on this.

      • 0
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        gamini,
        Ambepitiya was called the “fearless judge”. A judge has to ‘fear’ only his conscience. He sentenced a young widow
        with children who was charged for the first time,with posession of 30 mg heroin,to Life Imprisonment.This was too harsh.By such sentences, he had built up a ‘reputation’.
        The purpose of custodial sentences is not only to punish,but also to reform. One year should have been sufficient, in this case.
        A judge should know the difference between ‘justice’ and what is ‘just’.
        How did a fully drunk Naufer shoot dead two persons, one who was armed and was said to have shot back at him?

      • 0
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        could i get your email adress to discuss this further. I am a young journalist affiliated with a online news website in sri lanka and i wish to write an article about the judge

  • 0
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    When you weaken a once sublime system of justice, law and order
    you, in fact, are self-imposing a deep injury to the society concerned. Such a society will either never recover or take a long time to recover. That is today’s Sri Lanka’s dilemma.

    The behaviour of lawyers – when Counsel Walaliyadde stood in Court stting he will be defending Potta Naufer – is further proof our system of justice has lost its sheen long ago. There are more dignified and professional ways of dissent available to lawyers to prove their point is elementary.

    Senguttuvan

    • 0
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      If the System of Justice can not protect the worst of it’s citizen, then that Justice System can not protect the best of it’s Citizen either.

  • 0
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    What I heard was talked about in Pottu Narufer’s residential neighbourhood – “Whenever he was in police custody, in remand or in jail he never failed to enjoy the egg-hoppers and chicken buryiani prepared in his palatial well secured home; he had all the communication facilities as a normal man; visited home whenever he wanted and, besides satisfying other physical needs, also freely discussed business (kudu operation) with partners with whose help the wife carried on without interruption. He was patronized by prominent politicos both from the Green and Blue shades; so much so they were frequently visiting Naufer’s home when he was in remand charged on the Judge Ambepitiya murder matter having discussions with the wife. What is more is that whenever he was brought to Hustdorp for the hearings Senior Prison officers who escort him and some Police Officers too were seen entering the man’s.” If this was true, is it not a wonder that he had the courage to do this horrendous act.

  • 0
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    The link between Law enforcement and the administration of justice is the Bar and that link is corrupted and corroded effecting very badly both law enfocement and administration of justice.
    Most of the maladies of our society today are due to the immoral greedy behaviour of the bar.
    Practically not a single lawyer brings in a single public interest litigation in a society filled to the brim if not spilling over with injustices on a daily basis.

  • 0
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    current chief justice who wrote the basically, funereally ,factually wrong judgment for sevenagla sugar corporation privatization fundamental right case in Sri Lanka.if she can look that wrong judgment written by her,she will realize that she lay down the foundation for killing of independence judiciary system of this poor nation.she came to supreme court from back door without having any experience to be their.She written the wrong judgment to endorsed wrong doing corrupted political leaders of the country.with the proof evidence she accepted that the government was wrong and finally wrote the wrong judgment to secure the face of the corrupted political leaders and make historical injustice to the people of the country whose did and acted in the best interest of the country.do you expect to have any justice from political corrupted and politically motivated this legal system of the country.this the public challenge to the chief justice from the responsible citizen and can you read the your wrong judgment and accepted it??????????by name of the law and human dignity of the civilization world where you obtained your education if not shed to the education you obtained from such great institution.

  • 0
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    Hey Mr Tirantha, speaking as one lawyer who willingly participated in the strike action followng the attack on the Mannar court house and who applaud the Mannar lawyers in continuing with the strike, what exactly do you propose that these concerned lawyers do when the government shows the Bar contempt by not taking action against that thug Bathiudeen? Why do you not address that question in your long rambling article?

    I know that you are eager to earn your fees and instead talk of litigants being affected when strike action happens. Be honest.

  • 0
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    I posted the above comment to see how many will respond positively to the Truth about the murder of Judge Sarath Ambepitiya. None seem to have been able to read between the lines. I categorically state that Judge Sarath Ambeypitiya was murdered at the behest of none other than former CJ Sarath N Silva. It is for that reason that he appeared at the murder scene immediately and speculated about the Drug Cases just to mislead the investigations. Will there be JUSTICE ever for the perpetrators of crime?

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