By Upul Jayasuriya –
As I rise before this august assembly for the second time since my last convocation having been re-elected. As the President of the Bar Association of Sri Lanka It is my pride and privilege to place before you some of our achievements and state the way forward in the ensuing year with reference to the issues that we are encountering as the Bar in Sri Lanka.
As you may be aware, the year 2013 will go down in the annals of the BASL given the numerous projects that were added on to its calendar.
The Manupatra Website was introduced free of charge to the BASL membership granting access to over 1 Million judgments including Federal and Supreme Court judgments of India as well as Federal Supreme court judgments in the US and House of Lords judgments in the UK. This would have otherwise cost US$ 550/- per member.
In addition over 24 Seminars have been held in almost every High Court jurisdiction in the past year and will be repeated in the year 2014.
For the first time, the National Law Conference was held over 3 days at Hotel Kandalama,
The first-ever National Labour Conference will be held spanning over two days at the Hotel Cinnamon Lakeside in May 2014.
Further, we have commenced the refurbishment of the BASL Auditorium at a cost of Rs. 9 Million out of which a substantial part of it, is funded by the family of the late Dr. HW Jayawardena the 1st President of the Bar Association of Sri Lanka. This auditorium will be named in memory of late Dr. Jayawardena after completion.
We will be refurbishing and developing the Colombo Law Library which is more than two centuries old at a cost of nearly Rs.6 million.
We will be awarding 20 scholarships to members of the BASL to pursue a LLM course at the University of Colombo at a cost of approximately 500,000/= per scholar.
This is not all. ….. there is a lot more.
Most of these projects have been undertaken with constrained financial support from traditional sources due to the unwavering manner in which we stood by the causes of the BASL. Nonetheless we have been successful in in implementing the projected plan of action due to the support of our donors and the unstilted support of many unsung heroes who did not surface on many an occasion and shunned publicity.
Be it organizing conferences at rural, national and international level, Bar publications, software development, Junior Bar, Social development and welfare of the bar, BASL Management, etc., many of our dedicated members have spared no pains with substantial sacrifices in all fronts in serving the Bar and the BASL and cause of Justice.
I take this opportunity to thank them with all sincerity for a job well done and appeal to them to carry on with their good work in the ensuing year too..
Can we be happy that we have done our duty and fulfilled our obligations in particular the society in General.
I shall quote from Former Chief Justice of India, His Lordship Chief Justice Altamas Kabir, when he addressed the Supreme Court a few days ago, I quote “It is the duty of the legal fraternity upon its Corporate Socio Responsibility to give something back to the society in return for what we have been benefitted, Issues of Public Interest should be foremost in the mind of a practitioner of law.”
We have seen sad incidents in Welliweriya, Slave Island, Wanathamulla , Negambo, Chillaw, Kankasanthurai and Mannar. We have intervened in all most all these instances.
When will that day with such lawlessness be put to an end in our society?
Peaceful demonstrations are banned violating the Fundamental rights of the people, right of Association and freedom of expression on the basis it affects, “the free flow of street traffic”. When the same is committed by the privileged by bringing the entire city traffic to a grinding halt for “night races” no such orders are sought or imposed. Mega projects are awarded through the back door costing people thousands of Millions of dollars at varying rates that differ from one road to another with a new nomenclature called “unsolicited offers” just by one party.
There is only one place that has to stand firm as a bulwark for the protection of the rights of the people…..that is Judiciary………
The appointing process of the Judges that was once vested with the Constitutional Council is now vested with a single individual whose criteria is not the suitability, Qualifications or seniority but mere arbitrary practice that lacks transparency, in total violation of the Latimer House Principles to which we are signatories. Fundamental rights of the working class such as right to strike, right to protest and the right to express their views through peaceful protests which are guaranteed by local laws including the Constitution and international covenants are being stifled by way of restraining orders obtained from courts.
Hon. The Attorney General,……… we are aware that even the officers of your department are under severe pressure.
Those who are in the highest echelons’ of governance are blatantly violating the law with the with the full glare of public scrutiny. If this situation is permitted it would create a dangerous trend where the privileged persons would have no Law to obey.
The Bar and the bench can be referred to as the two sides of the coin which are inseparable as it can not exist without the other. To achieve the independence of the Judiciary the independence and the strength of the Bar is imperative. If the Bar takes a partisan view and a luke warm attitude on matters concerning the bench the future of the judiciary is at stake.
Let me quote from the iconic Lawyer turned statesman, Nelson Mandela, “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”
During the year under re-view a strong and an apolitical judge parted from our midst. President of the Court of Appeal as he was then Justice Sri Skandaraja’s name will be inscribed in gold as a judge who sacrificed his decades of professional career for what he thought was right. The Judgment he wrote presiding a divisional bench quashing the parliamentary select committee proceeding on the 43rd Chief Justice made him pay the Supreme Sacrifice which cost him, his family and the loved ones dearly.
The 43rd Chief Justice herself had to pay her price and sacrifice with more than a decade and half of her Judicial career, for standing up to her integrity. Up to date she is being hounded out. Permit me to quote from Mahatma Gandhi, “The weak can never forgive. Forgiveness is the attribute of the strong.”
We the bar shall firmly be committed to the causes that are paramount to our integrity and the independence we stand for, at the Bar with no change of course.
When we recount the circumstances, time, and personages of this tragic background and the guiltless life of Justice Sri Skandarajah, we find that the wrongs of headless anarchic attitudes and the ruin of a nation are on the cards and on the heads of the people of this country.
The deprivation of that humble simple man who sat behind the bench has been robbed from the Sri Lankan nation, a Judge, whom we could call a judge in the literal sense of the words.
In the discharge of his Judicial duties, those who looked at Justice Sri Skandaraja as his Moses, shall bow their heads beneath their bitter load; in our heavy loss, and our land’s dimmed glory. But who weeps for him? The hour is upon us when we must cry, though no mortal may ever hear us, No more of him, but let’s awake from the fearful palsy fallen upon the people, and answer to ourselves and to the system that robbed him of his rightful place.
Our cry for Justice is not only for those who come seeking Justice but Judges themselves who can not speak for themselves. It is time that transparent procedures are put in place and independent criteria based on merit be be adopted and turn our back to those who take positions that do not legitimately belong to them.
It is imperative that remedial action be taken and that the executive acts sensibly in future, or else the Judiciary and the Nation run the risk of loosing more judges in the mold of Justice Sriskandarajah, a loss which cannot be rectified or compensated, and a loss with profound consequences. We shall reject these interferences and manipulations that destroy the Judicial Independence beyond redemption.
In the back drop of the abrogation, by the 18th Amendment, of the historical and salutary 17th Amendment that was assented to by the entire 225 members of Parliament which created the constitutional council, the Executive is now tasked with 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 others. However their names will go down in our memory lane inscribed and emblazoned for their courage in developing the Law on fundamental rights having had the intellectual capacity and the courage holding against the very executive that appointed them.
Permit me to pay a tribute to another stalwart, a giant of the Supreme Court Bench, who retired having blazed a trail in our legal history. Justice Nimal Gamini Amaratunga who bowed out a few months ago has bequeathed an unmatchable legacy to his successors in office is not only an inspiration but a stimulation to every one else to follow his foot steps. He deserves the veneration of the legal fraternity on the fearless manner in many a contentious issues including the interpretation of the powers of the Parliamentary Select committees. We wish him good Health and Happiness.
An independent, impartial, honest and competent judiciary is an essential prerequisite and is integral to upholding the rule of law. enhancing public confidence in the judiciary. The function of the judiciary is to interpret and apply the national constitution and legislation, consistent with international human rights conventions and international law, to the extent permitted by the domestic law of each country.
To secure these aims: Latimer House principles a product of Commonwealth, adopted in 2006 have laid the following principles which are flouted in Sri Lanka with venom.
Let me quote these principles.
“(a) Judicial appointments should be made on the basis of clearly defined criteria and by a publicly declared process. The process should ensure equality of opportunity for all who are eligible for judicial office; appointment on merit; and that appropriate consideration is given to the need for the progressive attainment of gender equity and the removal of other historic factors of discrimination;
(b) Arrangements for appropriate security of tenure and protection of levels of remuneration must be in place;
(c) Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought;
(d) Interaction, if any, between the executive and the judiciary should not compromise judicial independence.
Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior that clearly renders them unfit to discharge their duties.”
We are entitled to have the confidence that these principles, that have been accepted globally, will be observed in our Country too, particularly holding the chair in office of the Commonwealth.
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 and its impact on the rule of law would be devastating.
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.
It is the responsibility of the judiciary and the Legal fraternity, to collectively strive to remedy this crisis of confidence, which has eroded in immeasurable manner.
Permit me to quote Sir Winston Churchill, from what he observed:
“The principle of complete independence of the judiciary from the executive is the foundation of many things. The judge has not only to do justice between man and man. He also has to do justice between the citizens and the State. ”
In many a instances we hear people proclaiming that they have done right, and make an attempt to justify, knowing very well that they have not done right. For those I would like to quote, The Indian icon Mahatma Gandhi the great. He said “There is a higher court than courts of justice and that is the court of conscience. It super cedes all other courts.”
The time has come, to drive sanity and restore intact, in full glare of public scrutiny, Judges and Lawyers near and far, let’s get together and cry for Justice and equity, cry for rule of law, Independence of the Judiciary and save the nation’s life, and save it from tyranny!
The integrity and independence of legal systems and judicial institutions and the very law itself cannot be of concern to only lawyers and judges in Sri Lanka. Rather, it is of paramount concern to all citizens to have regard and respect for rule of law and it is the paramount duty of both the Judiciary and the Bar to guard and protect this cardinal principal and, as the head of the Bar, I can state with all conviction that the Bar will discharge this duty and that we are confident and trust that the Judiciary will do so too.
*BASL President’s Speech at the Convocation March 30, 2014