By Nagananda Kodituwakku –

Nagananda Kodituwakku

The exposure given by the media to the stand taken by Ranjan Ramanayake, MP, against corruption involving the judiciary and the legal profession should be an eye opener to all citizens of Sri Lanka. In my view, his bold attempt to raise this important issue before the voters is entirely lawful, especially at a time the government has already conceded to the international community that the people of Sri Lanka have no confidence in the judiciary, which lacks accountability. In fact, people expect from their elected members of Parliament to address the fundamental issues of this nature that affect the people’s sovereign rights, which cannot be ensured without an independent judiciary and honest legal professionals to assist in dispensing justice.

People have the right to criticize the Judiciary and legal profession

I absolutely agree with MP Ranjan Ramanayake’s view on the judiciary and the legal profession in Republic of Sri Lanka, where the people are considered supreme only in theory but not in practice. This type of actions would be instrumental in educating the people that they are the masters over all organs of the government and that no one in the judiciary exercises any divine power, but the judicial power of the people. And every judge makes a pledge under the Constitution to observe and honour the public trust doctrine and is required to protect vindicate and enforce the people’s judicial power with due respect and regard to the supreme sovereign rights vested in the people.

Therefore, there is no question that a people’s representative like Ranjan Ramanayake, MP, has every right to express his studied concerns about the lapses and failures involving the judiciary and the legal profession, with the sole objective of compelling the Government to take necessary measures to arrest the declining trends and to win back the confidence of the constituents and the international community. 

Bar Association takes different stands

No one can ignore the fact that it was the loss of people’s confidence in the judiciary that made the Government of Sri Lanka to co-sponsor a resolution at the United Nations Human Rights Council on 01st Oct 2015, against itself. It was highly significant that the Bar Association of Sri Lanka too was made to concede the absence of independence and accountability in Sri Lanka’s Judiciary as follows.

“…“… It is unfortunate that existing judicial and prosecutorial system have not met the confidence of many concerned. It is an undeniable fact that over a period of time the independence and credibility of many of these institutions have suffered due to many reasons, resulting in an erosion of the confidence in the system as a whole…” – Geoffrey Alagaratnam, PC, President of the Bar Association, 28^th Nov 2015 (Statement of the BASL on the Report of the OHCHR Investigation on Sri Lanka)

However, the people can now observe that the Bar Association under the current leadership has publicly entered into a tussle against MP, Ranjan Ramanayake threatening him either to withdraw his statement or face contempt of court charges an action of which go against the view expressed by the former President of the Bar Association on the independence of the judiciary and the rule of law.

Judges cannot afford to be timorous souls

The celebrated English Judge Lord Denning once remonstrated that ‘judges cannot afford to be timorous souls and they cannot remain impotent, incapable and sterile in the face of injustice’. Therefore, it is inevitable, that when the judiciary fails to observe its constitutional obligations to the people quite naturally it comes under fire from the constituents and their representatives. People always expect the judiciary to be the symbol   of hope against injustice being committed by corrupt criminal elements occupying office in the legislature and the executive. Accordingly, Ranjan Ramanayake expresses his views well within the parameters of the rule of law.

The Judiciary itself is responsible for losing public confidence

In 1988 a Bench of five Supreme Court judges had declared that National List provision (Article 99A) permitting rejected candidates to enter the Parliament was constitutional.   This is a clear case of constitutional fraud committed by the judiciary in collaboration with the Executive (the then President J R Jayewardene) and the Speaker of the then Parliament. The role played by the Supreme Court in this case was a total betrayal of the trust placed in it by the people (click the following link for the judgment).

When this Constitutional fraud was discovered and all National List appointments made after the 2015 General Election were challenged (SC/Writs/5/2015) along with a request to appoint a fuller bench of the Supreme Court to hear this matter of National Importance in terms of Article 132 (3)  (iii) of the Constitution.  Yet, the Chief Justice K Sripavan declined it and after his retirement the matter was once again brought before the Chief Justice Priyasath Dep. Yet again it was declined, which showed that the Judiciary was incapable of giving effect to its constitutional mandates. In this backdrop this important case of National Importance was discontinued by the Petitioner on 31^st July 2017.

Click the following link to view the Motion filed in the Supreme Court on 31^st July 2017 setting out the reasons for discontinuance.      

For this serious lapse on the part of the incumbent Chief Justice and his predecessor favoring the government they have been charged for committing Judicial Corruption.  In addition several other former Chief Justices and judges in the Supreme Court and the Court of Appeal have also been charged for judicial corruption. The names of these judges include former Chief Justices, Sarath N Silva, Shirani Bandaranayake, Mohan Pieris, K Sripavan and the incumbent Chief Justice Priyasath Dep and justices Eva Vanasundara and Vijith Malalgoda. Further the incumbent Attorney General Jayantha Jayasuriya and his predecessor Yuwanjan Wijayathilake have also been charged for abuse of public office for committing corruption.

It is unbelievable for a Chief Justice to plead with the Executive (President and the Prime Minister) of the new government to remain in office, assuring judgments favouring the government and also to appoint judges according to the wishes of the government. Regrettably, this became a reality with the former Chief Justice Mohan Pieris and the Prime Minister Ranil Wickremesinghe brought it before the parliament on 30^th Jan 2015, humiliating the entire judiciary. Another notable serious lapse recorded in the recent judicial history is the public apology made to the people by the former Chief Justice (Sarath N Silva) for his failure to perform his office as required by law in ‘Helping Hambantota case’ involving former President Mahinda Rajapaksa.

These evidence are in the public domain and the people and their representatives have every right to examine them and criticize the judiciary for its serious lapses affecting the citizenry.   

Restoring the Integrity of the Judiciary 

People who have lost their trust and confidence in the Judiciary have reported the state of Judiciary of Sri Lanka to the Commonwealth of Nations, to ensure that Latimer House principles which state that ‘An independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice’ are implemented.

Regulatory body for the legal profession similar to the United Kingdom, is a must

Proposal has already been floated by me for the establishment of an independent regulatory body for the legal profession in Sri Lanka, similar to the Solicitor Regulatory Authority in the UK. It does justice to the British public by removing all corrupt elements occupying office as legal practitioners. The absence of such a mechanism in Sri Lanka causes tremendous damage to the profession with enormous undesirable elements continuing to engage in legal practice.

The importance of having such a mechanism in operation could be highlighted from the information provided by the British Law Society, which is given below. It gives the number of lawyers who have been removed, suspended and disciplined for abuse of their profession for the year 2016 alone.

In the final analysis, the importance of honouring the constitutional mandate is stressed that requires every judge and a lawyer to perform the public office with due respect and regard to the citizenry who hold sovereign power over all organs of the Government; Legislature, Executive and the Judiciary. 

*Nagananda Kodituwakku, Attorney-at-Law (Sri Lanka) & Solicitor (England and Wales)