By Upul Jayasuriya –

 

Upul Jayasuriya -BASL President

I could quote a few examples from the past. Dr. Colvin R De Silva as the Minister of Plantations he was on a tour in the Badulla Region. He heard over the radio that he has been stripped of his portfolio. He returned his official Car and returned to Colombo by Train. Minister of Finance UB Wanninayake who lived in Polgahawela used to travelled to Colombo by Train and was picked up at the Fort railway station by his official vehicle. When another Minister Mr. Vincent Perera passed away his body could not be taken to his home as there was not sufficient room in his humble home. When Mr. Dudley Senanayake, four times Prime Minister of Sri Lanka passed away with only Rs. 400 in his bank account. Sirimavo Bandaranaike Prime Minister lost all her husbands ancestral wealth, tens of thousands of acres, due to the Laws that they brought in.

It gives me great pleasure to speak today in commemoration of Hon. Al-haj M A Bakeer Marker. He was born on the 12 May 1917, in the hamlet of Maradana – Beruwala. His father was a Native Physician. He Had his early education at St. Sebestian’s College, Hulftsdorp and thereafter at Zahira College Colombo. He had the privilege and the benefit of being moulded by a first class educationist of Sri Lanka Hon. T B Jaya. Hon. Jaya was his mentor, Teacher and friend. He was called to the Bar in 1950. Even before Joining the Bar he was in politics. That was in 1949. He was welcomed by the doyens of the Kalutara Bar and later formed the partnership with Mr. NLR Fernando of Kalutara. He was later elected the President of the Kalutara Bar.

He entered the Parliament a decade after joining the Bar. He was elected the Deputy Speaker and later as the speaker of the Parliament in 1978 and a Minister in 1983. That was an era of Gentlemen in politics. He belonged to a rare creed and did not believe in nepotism even within the family. He was a rare example to the politicians of the past and present. In 1988 he bowed out of politics and made way for his son who was a lawyer himself with a natural flare for political leadership to fill his void. That was no favour for his son but a display of Love and affection to his dear constituents. Those were the good old days when He nor his leaders believed in family bandysm where father, brothers, children, cousins and even in Laws were all bundled in to the political arena creating a political heritage.

He believed and practiced national integration. He not only believed in communal harmony but practiced it. He set an example by his own son being admitted to a prime Sinhala Buddhist school in Colombo, Ananda College. His son is a better orator in Sinhalese and shone within and out of school among Sinhalese. That was the biggest gift of his to the Nation.

Mr. Bakeer Marker was deeply religious and a devout Muslim.

His parting remarks from the speech he made in the Parliament I quote,” We the Muslims extend our hand in friendship to all communities whom we regard as being of one Nation, so that together we can march forward towards that one divine event to which the whole creation moves”  He was a politician, a professional and above all a gentlemen par excellence.

Sad to say that in the National arena, to say the least, his is a dying breed. He displayed professionalism in Politics and in Law.

Professional approach demands fearless and protective of its independence and impartiality, which is free of political control and manipulated direction.

Hon. Bakeer Marker played the game by the rule. He was a man who never stepped on the rule. Rule of Law is the Rule by Law and not the Rule by men as it often happens around us. To ensure the proper maintenance of the Rule of Law the Independence and the Dignity of the Public Service, the Police Service, Foreign Service, the Education service and more over the Judicial service is of paramount importance.

His forte was honesty and integrity. This is the treasured wealth that he inherited his children and grand children. This is the legacy he has left for the present day politicians. This is the hall mark of a great leader.

Sadly so we are in an era experiencing an aura of mixed priorities where in Democratic values or Rule of Law has less attention and importance.

Where has it all begun? The values …… The values that we all treasured and embraced, generation to generation have dwindled in no uncertain terms. Its main responsibility lies with the political Leadership. It is a rare commodity even amongst the rulers. If those who set the rules have no respect to it who guards the guards?

I could quote a few examples from the past. Dr. Colvin R De Silva as the Minister of Plantations he was on a tour in the Badulla Region. He heard over the radio that he has been stripped of his portfolio. He returned his official Car and returned to Colombo by Train. Minister of Finance UB Wanninayake who lived in Polgahawela used to travelled to Colombo by Train and was picked up at the Fort railway station by his official vehicle. When another Minister Mr. Vincent Perera passed away his body could not be taken to his home as there was not sufficient room in his humble home. When Mr. Dudley Senanayake, four times Prime Minister of Sri Lanka passed away with only Rs. 400 in his bank account. Sirimavo Bandaranaike Prime Minister lost all her husbands ancestral wealth, tens of thousands of acres, due to the Laws that they brought in.

Do we have these values any more? These are examples which are easy to quote and rare to find in the present context. They are berried with the history.

Let me quote from the iconic Lawyer turned statesman, Nelson Mandela, the great; “Our new order must therefore be based on constitutional democracy in which regardless of  race, gender, religion or political opinion, the law will provide for the equal protection of all. It will be an order in which the government will be bound by a higher body of rules – an empire of laws – and will not govern at its discretion. We reject an empire of man; we require the rule of law, as opposed to what Aristotle called the “passion of men”

It matters not, if a government minister, politician or even the Prime Minister demands a prosecution be started.

Political aims, petty vindictiveness or vendettas should have no role to play. This process helps uphold the rule of law.

Lord Simon, one time Attorney General of the United Kingdom said: “The Attorney General should absolutely decline to receive orders from the Prime Minister or cabinet or anybody else”.

He further said; “While that may not do much for my political career, that is an important protection for the rule of law in the United Kingdom and one that I will uphold and staunchly defend.”

Within the framework of the rule of law, there can not exist situations which oppress Freedoms of Association, and expressions, rights of minorities, condone wrongs over the right, and support the views of the political masters and their dictates.

Such a legal system will allow discrimination. Absence of protection for human rights, courts and legal system may deprive fellow citizens of their freedom, property and ultimately their very existence. In such circumstances, the claim that the rule of law is observed is but a mockery of the truth.

Public Service

Lets look at the Public Service. Its institutions are endangered by the appointing process of its key personalities in the adaptation of criteria in the absence of merit and eminency. Be it in the education sector or the higher education sector, the absence of objective standards and the application of the subjective approach has resulted in the qualitative degeneration of the hallowed institutions and the education itself. This is a process that commenced nearly two decades ago under the guise of ‘Political victimization” that has now engulfed the entire system by victimizing and jeopardizing the entire machination beyond redemption. This melanoma that commenced from the appointing process of the teachers, principals and Directors of Education has now spread not only to university administration but also to university admissions that are now regulated by chits issued by Members of Parliament.

Arrests are carried out at the whim and fancy of persons in authority upon the blessings of the executive with no sensitivity to legal principles and consequences.

In the same way arrests are not carried out whether they rob the state coffers, elephants or any thing between pin to a plane depending on how close they are to the powers that be.

Foreign Service

In a global village Foreign Direct Investment is an element that is most essential to the economic growth that is dependent on the skillfully managed foreign relations. Time tested criteria based on merit and eminency, of the persons selected to represent missions have all being derailed with those appointed from among the close relatives and the friends of the executive who are motivated by fulfilling the personal agendas which are far from the National agendas. This has given rise to employ PR firms at a colossal cost to the National coffers upon the decision of a member of parliament with no selection criteria. Such persons have no decision making authority instead act in conjunction with the Central Bank who still has no function to perform under the Finance act.  Time tested criteria is of little relevance. This pathetic situation has pushed the Nation in to a deeper crisis with no proper advise on the course of action to be adopted with no evaluation of the UN resolution on a probe that has commenced and will progress unabated.

Law enforcement authorities

The Election Commission,  Bribery commission,  Public service commission and the Police Service, have all fallen a prey and are governed by rule of the thumb with the appointments being made with total arbitrariness and are burdened with having to pay homage to the appointing authority in the pursuit of perks and the luxuries of office particularly with the removal of the salutary provisions of the 17^th amendment arbitrarily removed by the 18^th amendment. The Election Commissioner was heard to say that he has no powers after the abrogation of the 17^th Amendment to enforce free and fair elections. An order of the Supreme Court that was made by a divisional bench of five judges directing that fair coverage be given to all parties in the fray was flagrantly flouted by state media in the year 2010 during the Presidential elections. Papers that were filed to deal with the violators of the Court orders for Contempt were totally ignored by the Court and not even listed for support.

Corruption

conventionally defined as the use of power in breach of Public Trust for private gain. Forms of corruption vary, but include bribery, extortion, improper influence by public or private interests, and misappropriation of public funds or other resources.

It is troubling to see some countries publicly proclaim adherence to the Rule of Law and Human Rights, whilst at the same time eroding those very same standards behind the cover of legislative processes – providing a thin veneer of respectability and apparent conformity with legal norms.

Politically influential persons are not charged by the Bribery Commission. Even if they are charged by a coincidence they are discharged from proceedings in no time. Petitions have been made against the Governor of the Central Bank on the misuse of public funds in the purchase of share from the EPF at a loss of Rs. 12 Billion the complaint made at the bribery commission has been ignored. in the case purchase of Greek Bonds loss incurred by the Nation of 2 Billion has been ignored. When the then chairman of the NSB attempted to buy shares, if purchased resulting in a loss of Rs.300 million he is charged. When Rs. 400 Million is found in the bank account of a government Minister he is not charged. The 43^rd Chief Justice is charged for not declaring the details of an account that had zero balance.

Police service

Look at the Police service; Police act with impunity within different cells. Each cell is unaware of the activities of the other. Our Police force is most intelligent. But their weakness is that they think that others are not. In crucial times they have to take instructions from the Politicians. Their powers are now vested with the Army, Navy and the Air Force under and by virtue of the public Securities ordinance. Ekneligoda, Lasantha, Kugan and incidents in Aluthgama, Dharga Town and Beruwala are  some of the “duties”  they had to discharge. In Beruwala they used some gaseous substance that are not commonly available. Some have the license to abduct, loot and or commit arson, and some have the license to Kill. Of course they are not without reward. Rathupaswela, Nittambuwa and Badulla are a few of the rewards to the service personnel. The official killers are not charged. Some are blessed with the fortune to carry on in service for many years after the retirement age.

This “state of lawlessness’ has to be curbed and controlled by the judiciary. This is the essence of the rule of law, and it goes to the roots of constitutionalism. It is the solemn function of the judiciary to ensure that no constitutional or legal functionary or authority acts beyond the limits of its power nor that there be any abuse or misuse of power. Be it the common man, the legislator or the legislature, judicial activism should be applied with vigor and without favour.

The judiciary stands between the citizen and the State as a bulwark against executive excesses of misuse or abuse of power or the transgression of constitutional or legal limitations by the executive as well as the legislature.

The Judiciary and the survival of a legal system

In the back drop of the abrogation, of the historical and salutary 17^th  the Executive has usurped the authority to make appointments to the apex Court at will. Similar power was vested with the executive when appointments were made under the 78 Constitution with the likes of Chief Justice Neville Samarakoon, Justice Dr. ARB Amarasinghe Justice, Mark Fernando and several other illustrious judges. Their names will go down in our memory lane inscribed and emblazoned for their courage in developing the Law on fundamental rights holding against the very executive that appointed them.

Do we now have the stamina or the courage to hold against a petty Police constable? I have my doubts. In the Magistrates court of Attanagalla in a case of shooting by a traffic police constable at point blank range with no provocation, the accused officer was surrendered to court and was bailed out the next day by the Magistrate. In a matter where one is alleged to have committed Murder the Magistrate has no power to grant bail.

The Bar Association intervened in this matter and have filed revision papers.

The appointment of political cronies is not too far! In fact that woeful day has already dawned.   Is this the end of the golden era of Judicial Independence?

No…..! It is not the beginning and nor is it the end.

Judicial appointments should be made on the basis of merit and seniority. Judicial appointments should not be made on the basis of political considerations. Due consideration should be given to career Judicial Officers who have worked hard to administer justice over their entire careers.  If these salutary rules are breached, the outcome and its impact on the rule of law would be devastating.

It is in today’s news papers that a new President of the Court of Appeal is appointed. He is an able officer of the Attorney General’s Department. He was appointed an Additional Solicitor General in March. The senior most Judge in the Court of Appeal was also an Additional Solicitor General in 2005. He was appointed a Judge of the Court of Appeal in 2007. He sat on the divisional bench and issued the writ quashing the proceedings of the Parliament select Committee. He has been deprived of his rightful place as the President of the Court of Appeal.

What does the Executive want? A subdues Judiciary! A Judiciary that makes orders on the will and desires of the Executive? Is that what the executive wants? If that be the case you don’t need a Judiciary. You can rule with executive order. That’s is a monocracy. That is no Demacracy.

I have said this time and again. They are falling on the deaf ears.

Judges must be given security of tenure, there must be independent procedures put in place for their appointment and removal.

Judges must be financially secure. At least the judges of the superior courts, who are relatively few in number, should continue to receive all the benefits that they enjoy as sitting judges until their death. The obnoxious practice of conferring privileged positions on judicial officers after retirement at the discretion of the executive should cease.

There should be a set of transparent criteria and a due  process for the appointment and promotion of Appellate Judges which is not vested solely in the hands of one appointing authority. If this is not implemented, Public confidence in the independence and impartiality of the judiciary would then be irreparably impaired. We have seen in our midst that olden day judges did not deliver judgments to win the hearts of the rulers hoping for retirement benefits and perks.

I will quote one example.

I will quote one example. Case of RP Wijesiri and Justice Parinda Ranasinghe……..

Absence of a fair adjudicator (which includes the prosecutor) the rule of law will be banished, replaced by arbitrary and flawed justice. Without fairness there can be no confidence in the courts and decision makers.

A trial where the conclusion is pre-determined, dictated by politics, or directed by the government, does not uphold the rule of law. It is vital, therefore, that the prosecutor be a fearless defender of independence, impartiality and fairness – ensuring not just that the guilty are convicted but also the innocent remain free.

Appointing process of the judges with no merit or criteria overlooking the ones who are due for promotion is a clear message to the Judiciary to fall in line with the Executive desires!

Independent, in the sense that a prosecutor should determine the merits of a prosecution solely on the basis of the law and available evidence.

No prosecution should be brought so as to satisfy the political aims of a party or individual. In the absence of admissible and genuine evidence, no prosecution should ever be started. The law courts are not the forum for settling political rivalries nor should they be used as a convenient means of neutralizing an opponent. The selective application of justice would cause violence to the system we cherished for decades.

The situation in India…. Police ….. Minister Ashwini Kumar had to resign…..

The prospect of a promotion; the fear of demotion or transfer; the chance of an increased salary or over seas trips; the possibility of a reward for a decision convenient to a political master – the prosecutor should guard against any of these considerations influencing his decision.

Our history is scattered with abuses of executive power and failures within the justice system.

Look at our own record of communal violence. It happened in 1958. It happened in 1983. It happened in 2014. This was a system perceived as biased, unfair and unjust. It further fuelled the anger and hatred and proved to a fertile breeding ground for discontent and terrorism.

If you undermine or subvert the rule of law in the belief that by so doing you will protect your regime or system of government; you will ultimately prove to be the destroyer of all that you seek to preserve. You will draw the wrath and the curses of the present and the future generations.

It is the duty of the Judiciary, the legal fraternity and the media to be vigilant in guarding against the danger of providing a fig leaf of legal respectability to what in reality are oppressive, unfair and unjust systems of law and government, devoid of the rule of law.

As I said at the start It is our duty and our call to play our role,….. a vital role and move wake up from the palsy in safeguarding the liberties and freedoms of our fellow citizen. When the echoes of discussion and analysis of this congregation have faded, and you tread your weary way home, remember the real value and contribution which you can make to ensuring the rule of law is upheld.

Needless to say that today our unique vision of the world stands in great danger. It is under challenge from various quarters and various ideologies and political gain. However we as individual societies are unable to stem the tide since, we are a house divided amongst ourselves.

Today, we have to retrace the steps of the greatest dharmic ruler of all “ Emperor Asoka”, who nearly 2300 years back formulated a methodology of governance took it to the world as an alternative way of governing a society. It is the demand of the times that we the inheritors of the legacy of Bhagiyawath Gouthama Buddha, Jesus Christ and Allah all of whom preached Love and respect, and take their work forward.

Remember in the history when King Elara’s son ran the horse carriage injuring a peasant the king ordered that the son be brought to the same place and punished

161 years before Christ, King Elara has ruled this Country for 44 years. According to Mahawansa”, “ with even Justice towards friend and foe”

King Dutugemunu in the hours of his greatest victory proceeded to participate in the funeral rites of his noble enemy, King Elara. The place where he was slain and fell he was revered by his chivalrous foe, King Dutugemunu,  treated him with dignity.  He built a stupa in the name of “Elara Stupa” to commemorate King Elara at the place he was slain and inscribed the following word,

” Let no man Prince or Peasant, in future pass this place riding in palanquin or litter with beating of Drums.”

It is nothing but treating one another with respect and dignity. The society is built with people with conflicting views. It could be based on religious, social, political  or views on men and matters. King Dutugemunu is a name we mention with dignity as a conqueror. But if we are to respect  him we need to learn the great quality of his to respect the vanquished.

If we are to enjoy the peace that has dawned after 30 years it is of quintessence that we respect members of all communities as our own brothers and sisters, treat them with dignity. Recognize the fact that we all have an equal right to live peacefully and engage in one own profession with ones own belief.

Let me remind ourselves of the prophetic words of Lord Buddha quoting from Dhammapada;

Akkodena Jine kodhang – Asadhung Sadhuna Jineh

Jineh Kadhriyang Danena – Sachchena Alika Wadinang    223

“Let a man over come

hatred with Kindness

Evil by goodness,

Greed by generosity,

And lies by the truth

“Where the law is subject to some other authority and has none of its own, the collapse of a state … is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise ….”  Plato.

Equality and the Rule of Law is the most fundamental of all the principles. Without it no country can rise from the ashes and in fact would be diminished to ashes. The Development and the new horizons or the miracle of Asia would be a myth. Not even a distant dawn.

Permit me to end my oration with a quotation of Theodore Roosevelt, December 7, 1903 “No man is above the law and no man is below it; nor do we ask any man’s permission when we require him to obey it. Obedience to the law is demanded as a right; not asked as a favor.”