21 October, 2020

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What Will Happen If Mohan Pieris Continues To Act As If His Conduct Is Valid In Law

By C. V. Wigneswaran –

Justice C.V.Wigneswaran

Your Ladyship Dr.Mrs.Shirani Bandaranaike, President Mr.Upul Jayasuriya, Former Attorney General Mr.Sunil de Silva, my dear Brothers and Sisters!

It was not very long ago that I had the good fortune to address the Original Judiciary at their Annual Judicial Officers’ Conference. I  mentioned  then that it took eight long years since my retirement for them to remember me. It was indeed a pleasant surprise when your President- elect just a few days ago, last Wednesday, called on me to invite me to address you.  Despite the short notice it showed that the Legal Profession  still  appreciates  though rather belatedly the values and principles for which some of us stood for at great inconvenience, when in recent times such values are getting watered down or eroded around us.

I have no doubt kept away from such Inductions for some time preferring to lead a life of low profile and contentment but of course finding out from friends and others as to what was happening in the Legal Profession as well as in Courts.

Many of you might not know that I had been in the profession actively practicing for fifteen years before being called to serve the Judiciary in 1979. In 1977 I was one of the young Lawyers who went up to the late Mr. Neville Samarakoon, Queen’s Counsel, and invited him to come forward to contest the post of President, Bar Association. He said “Leave me alone! I like to lead a peaceful life!” He went on to elaborate on what he considered as essentials to his life-peaceful, which I believe is not relevant here!

But within a few months he had consented to shoulder the mantle of the Chief Justice of this Country. Soon after at a party I asked him “Sir! You were reluctant to contest the post of President, Bar Association but Destiny seems to have designed other plans for you.” He laughed, puffed at his pipe and said “When J.R. called me and asked me to accept the office of Chief Justiceship I told him “On one condition”. He asked what it was. I said “No interference of any sort”. “He agreed. So I agreed!”  he said. How thereafter President Jayewardene forgot his promise and interfered with the Judiciary and what that led to, are part of our unfortunate history.

Despite the many regrettable incidents that have plagued our Legal System in the last three and a half decades, the future of the profession did not look as bleak as it does today.  For a person who is completing fifty years in the profession next year, of which twenty five were on the Bench, the trajectory of the Legal System has been depressing and most recently alarming.  We are at the nadir in every aspect of our profession. None so alarming as the systematic institutional erosion.

The powers that be in this Country are missing the wood for the trees, it appears. By interfering with the Independence of the Judiciary they are disturbing the course of Law and Justice in this Country for all time. To them, it appears, what are taking place in Sri Lanka are mere incidents or a series of incidents of inconsequential value. They are like the few trees visible to their eyes. But they do not appear to have any idea as to the avalanche that is to fall and pervade the entire Judicial future of this Country; the dangerous jungle into which we have stepped on. Bigoted and short sighted we are,we do not see the writings on the wall.

We must not flex our muscles when dealing with Religions or Courts of Justice. However provocative any Religious Organisation might appear to be, flexing muscles at them is not the proper procedure to be adopted. Especially when such Organisations have emotive votaries not only locally but also outside our Country. And again under the present context resorting to hoodlum tactics with Courts of Law too is also ill-advised

The attack on religious freedoms radicalises the polity and unleashes dangers that cannot be controlled even by those who foster them.  The attack on the temple of justice removes the only rational and non-partisan check on government and individual excesses.  The combination of the two at present is both a time bomb waiting to go off and a cancer spreading to other areas at the same time.

The absence today of one of the special Invitees, whose religion and whose profession are under attack, underscores the extent of the pressures exerted on even well meaning individuals, and the debilitating effect it has on their ability to act according to their conscience.  In this regard I must commend the Honourable Attorney General for discharging a customary obligation without fear.

We have seen politicians who fan religious fervour paying with their lives to the extremists they helped create.  I have seen politicians who tried to interfere with the Law and Courts of Justice, later falling prey to their own machinations. It is best to discuss matters of importance regarding any Religious Organization with their spokespersons or leaders rather than resort to violent tactics. So too it is best to allow the Judiciary to carry on undisturbed conforming to the delineations set out by Law for them. If we bend or seek to bend Legal Institutions to suit our whims and fancies however highly placed we are, then we would have to face such activities boomeranging on us.

For example Mr. J.R.Jayewardene bent the Constitution of this Country to suit him and his party. But those who have reaped the benefit of his tomfoolery are not those from his party. Those currently indulging in such indiscretions must take a lesson from what J.R. did and what is taking place today. It would be too late when the boomerang strikes us, to retrieve ourselves.

We Sri Lankans have a tradition of becoming very agitated and emotional about matters that affect our society, political or otherwise, and thereafter forgetting such matters completely. We are emotional but with short memories.  Perhaps this is an island trait of living for the moment.  But where did we inherit the trait of opportunism so pithily described in Sinhalese as Vaasi patheta hoiya? I found our Judges and others in the legal profession who vociferously stood by the wronged Chief Justice of this Country just the other day, suddenly taking an about turn. It is the highest court that has to take the greatest responsibility but how spectacularly they have capitulated.  The members of the original judiciary and the members of the Bar rightly feel frustrated.  Whether this disappointment will continue is to be seen. We must remember that we reap what we sow. President JR’s party inherited the effects of what he did in a negative way.

I believe I am senior enough to venture to make a few comments regarding our profession including the Judiciary. Let us remember that the profession is not different from each of us. We are the profession. And the profession is us. Therefore what each of us make of our professional life is the popular image we foist on the world at large. The popular image of our profession, I could assure you, is not at all complimentary. We are looked upon as parasites drawing the life blood of the society fattening ourselves but giving insufficiently in return.

Speaking of Judges sometimes they are found fault with for forcing settlements on parties when one of them has a very good case.  Either they prefer not to labour themselves with the process of going through evidence and coming to a finding or their sole concern is to show conclusion of cases for the record.  Sometimes Judges are criticized for having their favourite  lawyers  in Court. If so and so is retained the Judge would be favourable to us, is an oft quoted comment. Due to such state of affairs Lawyers bend in half to become favourites of the incumbent Judge. They are prepared to compromise their client’s case just to receive such judicial blessings.

No doubt a fair comment could be made in this regard if the performance of any Lawyer appeals to any Judge and it is borne out in Court. But Judges must be careful that they do not go out of their way to show any partiality. In the provincial courts, when I used to preside, I did not allow Lawyers to see me in Chambers unless they were accompanied by the Lawyer for the other side. Otherwise all applications generally had to be in open Court. I kept a book with the Aaraachi in which every person who comes to see me in Chambers had to write down his name and inform what he wishes to discuss with me. I tried not to allow the anger certain Counsel may create in me in one case to affect me when the same Counsel appears in another case the same day. It would be as if he is appearing for the first time that day before me. These were simple means by which comments about familiarity or antipathy towards lawyers were to a great extent avoided.

Another area I have found to be wanting is the lack of interest shown by Co-Judges in Appellate Courts when it comes to writing Judgments. Since they decide on the Judge who would write a Judgment in advance, the other Judges show no interest to study the case or write either a judgment of their own or even a dissenting judgment. As a result Judgments are often scrappy and incomplete. If Co-Judges show interest the Judge who writes his Judgment would be more circumspective. Despite Justice Mark Fernando being a brilliant student of the Law I used to cross swords with him in his Chambers on many matters pertaining to our Judgments. Mark was such a patient Judge he would discuss any matter fully and completely and sometimes change his opinion if he saw merit in our arguments.

I do not wish to comment too much on our faults. But I must say I accepted this invitation to address you today to commend the Bar Association under the stewardship of Mr.Upul Jayasuriya for taking the correct legal stance with regard to the office of the Chief Justice. This Induction Ceremony has given Chief Justice Dr. Shirani Bandaranaike an opportunity to air her point of view to the Legal audience here and through the Press to the people at large. I hope no self – confessed relative of some ancient Sinhala King would take it upon himself to create hooliganism at this meeting since that seems to be the order of the day.

We must remember that the so-called Impeachment process against Chief Justice Dr.Shirani Bandaranaike was legally faulted. Both the Supreme Court as well as the Court of Appeal gave decisions in this regard. So long as Competent Courts of Law have held that the process adopted was faulty, then those who advocated such Impeachment should have gone to the relevant Court or Courts to have such orders or determinations quashed. They did not do so. By not doing so a dilemma arises. If the existing Orders are not reversed by a Fuller Bench and in fact do get confirmed in the future it would appear that all steps taken so far by the de facto Chief Justice would be illegal. Then irreparable harm and damages would be sustained by litigants whose cases were heard by a person who cannot be deemed to be the Chief Justice of this Country under the Law.

If the de facto Chief Justice continues to act as if his conduct is valid in Law and hears Applications, constitute Benches and makes Orders and Determinations so positively and confidently expecting a Divisional Bench to reverse the Orders already made, even if they do reverse the Orders already made in the future, then the integrity and impartiality of the Honourable Judges who make such orders would come into question. The delay has already given way to retirements and there is delay in those entitled to succeed, being brought in.

If in the future suppose a fuller Bench of the Supreme Court would not be called upon to review the already existing determinations of Courts, then it would become a mockery of the Judicial system. We would have taken steps acting contrary to the findings of a Court of Law but would continue not giving the slightest importance to the valid Orders and Determinations made by the Highest Judicial Forums of this Country.

Of course an application might be made to validate steps taken already, retrospectively.  Whether those who have knowingly violated the law should be given relief for their high handed act is a matter to be decided.  But eventually that would bring the entire profession and the judiciary into disrepute.

Thus there are inter alia three main possibilities and all three could lead to an impasse. If the Orders already made are upheld and not reversed, if they are reversed or if no application is made to reverse, there could be adverse consequences. A Democracy cannot be expected to flourish under illegalities and/or uncertainties.

Let me tell you something that I heard had happened in the North sometime ago. A District Judge had given an order with regard to a Land Case. The litigant who lost the case in the District Court went to a Kangaroo Court. The Judge there, a young Girl in her early twenties was given a copy of the District Judge’s Judgment.  She felt that the Judgment was correct and mentioned so in Court. But may be because the litigant who lost the Case in the District Court was an ardent supporter of their Militant Outfit she made some variations which gave such litigant some time to stay on, on the land. The person who won the Case at the District Court wanted to take writ out in the District Court. The lawyer told the litigant “You have a de jure judgment in your favour but the other person has a de facto Order in his favour. If you take writ out there is a possibility that you would be hauled up before the Kangaroo Court for contempt of Court. You must decide what you should do.”

We are more or less in this unenviable position. Could it be said therefore that the Parliament has become the Kangaroo Court in this instance arrogating judicial powers to itself ?

It appears that Law and its sanction is based today on force rather than consensus; forced legitimacy rather than consensual legitimacy. It is by conforming to the Law that we could vest consensual legitimacy on the  Law. Lawyers are an integral part in this process. By refusing to give legitimacy and sanction to the Orders and Determinations of the Superior Courts the powers that be are undermining their power and effectiveness. That such derogation is instigated by Parliament speaks ill of our Legislators.

I am glad that the Legal Profession has understood the seriousness of what is taking place and has geared itself to face the challenges. I thank your President-elect and the members of the Bar Council for having given me this opportunity to be with all of you and show my solidarity with what you are doing. Of course character assassinations through the Press, threats and intimidations, if not sheer physical violence, might be thrown at you by interested parties. But remember you are on a worthwhile journey. The journey to bring respect and legitimacy to Law and Order in this Country! The journey to oust force and coercion from the legal administration of Courts! The journey to consolidate our profession.

Mr. Jayasuriya! you have an unenviable task ahead.  The Bar has overwhelmingly thrown its support behind you.  I trust you will be a worthwhile repository of that trust.  Now, more than ever, is the time where party affiliations and personal differences have to be placed aside and the Profession be  given pride of place!  I wish you well in the new year of Office. God bless all of you! Thank You.

*Keynote speech by retd Supreme Court Justice C. V. Wigneswaran – the Annual Convocation of the Bar Association of Sri Lanka in Colombo on March 30, 2013.

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Latest comments

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    What an impeccable man Vigneswaran is. How many can stand up to him? Today many in the Legal profession holding High Office in the Judiciary is not worth a spec of dust under his feet. An ideal candidate to be the President of this country.

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    Sinhala people should realize how the politicions and the lwayers deprived the people the services of people like Wigneswaran based on the ethinicuty. When some of them the lawyers realize that it is too late

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    Hats off, Your Honor Mr Justice Vigneswaran!
    Hope your wise words don’t fall on deaf ears.

    May I quote..
    “When freedom does not have a purpose, when it does not wish to know anything about the rule of law engraved in the hearts of men and women, when it does not listen to the voice of conscience, it turns against humanity and society.”
    Pope John Paul II

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    ‘Parliament has become the Kangaroo Court’ -Can someone translate this in Sinhala for the Kangaroo Court (Parliamentary Select Committee) that Wimal Weerawansa was one of the member.

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      Wimal weerawansa, drop out grade 9 and
      Minister of Construction, Engineering Services, Housing and Common Amenities, what can i say…yr 9 drop out minister of high profile…Oh srilanka R.I.P…

      • 0
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        He is a former shot gun terrorist and his political path is only terrorising the others. He is a good tool to be used by the government but unfortunately it is earning bad name for it.

  • 0
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    Wise words courageously expressed.

  • 0
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    What a great speech, and what great courage. If Sri Lanka had more of his ilk, what a different place it would be.

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    This marvellous speech should be translated and send to the members of the PSC as well as to the Speaker. I wonder whether Wimal Weerawansa can understand this and so with other clowns, like Dillon Perera, Yapa, etc.

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    I propose this to be translated into Sinhala and send copies to all MPs.

    Sahadevan

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    Mr Vigneswaran is a supporter of the tigers ,Upul and the NGO crowd want to make the country go back.When the president of the Bar does not invite the sitting chief justice it becomes a private function,he has no right to do that as the bar is not his private property

    • 0
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      If you don’t like a “Tamil”, simply brad him as a “Tiger”; don’t live in fool’s paradise.

    • 0
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      The ‘tigr psycho’ seems to be blurring you from seeing other useful views.

    • 0
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      Anuradha,
      Every tamil including Justice C. V . Wigneswaran directly or indirectly affected by the government supported pogroms in 1958, 1963, 1966, 1977…..1983 definitely support the ideology based on which LTTE and other militant organizations are formed. LTTE may choose the wrong path to acheive what they want, but the root cause of the problem is not addressed yet, even after the demise of the LTTE.

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    Perfect food for thoughts for all the Judges in the Appex Court who had conveniently compromised their integrity, to a political stooge after CJ Bandaranayake was forced out. As Justice Wigneshwaran rightly said, their conduct in number of very important cases, after MP was unlawfully appointed to the office of the CJ, including the ‘Dockyard case’ in which Mohan Peiris’s gross misconduct and dishonesty as the AG was challenged with irrefutable evidence, raise serious questions about the integrity and impartiality of all the Judges in the Supreme Court. This country is now pleading for more people like this upright gentleman, Justice Wignashwaran, and not just ‘yes’ men in the Judiciary who shamelessly betray the peoples’s judicial power, apparently for private interests, which is a crime, from the right thinking peoples’ view point.

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    “The educated differ from the uneducated, as much as the living from the dead”-Aristotle

    Once again Justice Wigneswaran has shown the difference between a truly educated and a uneducated-educated.

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    I wonder why Wigneswaran did mention the example of JR not that of SHirani. When she acted as a stooge of Rajapakse in several occassions including 19th amendment and her husband accepted the position of Chairman of NSB, she did not expect it to boomerang on her in such a short spell of time.

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    It is a pity indeed that the Attorneys-at-Law, who are the rulers of this country, are not competent enough even to understand the Queen’s English that retd. Supreme Court Justice C. V. Wigneswaran had spoken. They understand only the Rule of Jungle law abundence with filth as preached by school drop-outs, such as W(im)al Weerawansa of “Genu Hora” fame and thos who employed ghost writers to pass the law exams.

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    It sure is a breadth fresh air to know gentlemen like Hon Judge Wigneswaran with such courage n values exist in this country. I wish I cud meet this grt man to shake hands with him one day….

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    Also the so called dep speaker, Chandima Weerakody who handled the media during the impeachment as the Rajapaksas was conducting the proceedings from the backstage was recently caught inporting ethanol which consists of 96% alcohol which is used for illecit brewaries.

    This is how the Rajas say thank you for a job well done!

  • 0
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    A nice and balanced speech by a highly respected judge. He should be an example to those judges who sell their conscience for mere perks.

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    Impeachment process may be flowed, but former CJ is not lily white and she is corrupt… No point in agitating since educated people should know that institutions need to to be protected. If politicians are corrupt then go after them.

    Wigneswaran has lost the plot since he is agitating against the institutions that he is suppose to protect. Insulting the parliament indicate his views about the country and these are the morons that act as 5th columns in SL after getting free eduction and now insulting the country.
    Let see how long you are going to stay in the country.

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      Watcher says “impeachment process may be flawed but former CJ is corrupt and not lily white.”
      Why has he forgotten that her appointment was made by the President himself who knew all that?

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        Does the decision and subsequent events surprised you ? Welcome to SL politics.

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    Where was Wigneswaran all this time? Is he the Messiah that is going to save the country, my foot. why isn’t he talking against Geneva and Tamilnadu?

  • 0
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    The speech made by former judge Mr. Vigneshwaran could be commended as a brave one on social responsibility point of view.

  • 0
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    Its a pity Mohan Pieris didn’t pick a honorable profession like his mother well liked & popular Teacher at St Antony’s college Wattala all knew her as the the Singing Teacher.

  • 0
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    A very bald judge and deserves much respect

  • 0
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    [A very bald judge] why is he wearing a wig?

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