Contempt of court case by BASL War path on contempt charges

2017-09-20

Bar Association of Sri Lanka (BASL) is on the war path against the Deputy Minister Ranjan Ramanayaka - an ardent opponent of bribery and corruption who campaigns with a vociferous voice and powerful activism to eradicate Bribery and Corruption. The BASL which is the only professional body of lawyers in Sri Lanka is contemplating filing a case against Ranjan alleging contempt for making derogatory and defamatory statements on the judiciary of bribery and corruption and the lawyers being corrupt and unprofessional.

After the decision by the Bar Association to file action on contempt, Ranjan apparently has intensified his campaign against the alleged corrupt judges and unprofessional conduct of lawyers. Lawyers are well aware of the famous Sinhala saying in villages that Litigation leads to destruction with main beneficiary being lawyers themselves and the legal concept of “locus Sandi”- principle of the legal right to institute proceedings in a given jurisdiction before commencement of any proceedings..

Ranjan has got into further difficulties by attacking Buddhist Clergy on a different issue as a strong and committed Christian in a traditional Christian environment. BASL was incorporated in 1974 amalgamating the traditional Bar Council and Law Society with a history since 1801 with inception of the Supreme Court and legal education being conducted through the Law College managed by the Council of Legal Education headed by the Chief Justice. BASL is armed with far reaching objects on rule of law, law and order, independence of the judiciary, protection of collective and individual human rights with a catalogue of other objects.

Every Judge is a lawyer who is automatically entitled to be a member of the association on the strength of the membership vested on taking oaths as a lawyer and judges and its disciplinary committee conducts inquiries on misbehaviour of the members of the profession. Association was on the wrong track in the past years during the tenures of immediate past presidents actively involved in “Regime Changes” and influencing wrong judicial appointments, (for which they were amply compensated) which is now led by a balance competent President and an able and efficient Secretary - the Chief Executive. It is learnt that the contempt charges are prepared by the Bar Association under Article 105 of the Constitution when there are pitfalls amongst academic and legal unresolved complications in the maze of undecided and uncertain arena, in the absence of certainties of law and procedure on this important aspect of the process acting as a major instrument to protect and maintain the dignity of the Judiciary considered with utmost respect by the litigants ad the legal profession, depending on the Judges chosen for the adjudication of their disputes and conflicts in relation to the State Governance and the Citizen.

There were numerous cross media interviews across all the printed and electronic media on the subject the public is eagerly watching with great interest. “Lord Hardwicke” in his judgement on contempt categorized the ingredients of the offence as scandalizing the Court, abusing parties, prejudicing the mankind against the office and Sri Lanka follows modified form of English system. Whether Ramanayaka is a party to commit these offences is the matter to be resolved through the complex contempt procedure.

Bribery and corruption including Bond scam and Ranjan’s silence 

There is no dispute that Bribery and Corruption is a criminal offence and a menace the citizen is clamouring an demanding to eradicate or at least minimize as it has spread as air and breath in the society bringing Sri Lanka to the 78th in the world index on Bribery and Corruption. Steps taken by successive governments to curb this menace have miserably failed to control which is now in the zenith endangering the life, developments and the economy of the country. Entire Governance and the system including the private sector are stinking with this curse.
Apart from the alleged scams of the previous governments which are rapidly being investigated, the current governance that emerged to clean it up is now immersed in mega scandals including the Bond Scam costing the nation trillions for 30 years in to the future, the alleged scam on the expressway in the public domain in the media and the and the 3.1 billion siphoned illegally from the vehicle permits imported for 100 members of the legislator including the deputy minister himself, who is alleged to have sold the permit with an enormous profit in addition to the continuous supplementary budgets for vehicles, repairs, and other expenditure amongst other parliamentary colleagues with no protest from a single member of the legislature - from the government and the opposition - including the Deputy Minister now immersed in a scandal on a “Quarry in Minuwangoda” and few other alleged scandals.

The dead silence of the Deputy Minister on the Bond and other mega scams raises eyebrows of the citizen expecting the whistle blowers to be impartial effective and not to be selective. The Bond Scam is said to be planned by the heads of pyramids and the toothless/powerless commissions are set up by them to distract the attention or sheer uneducated nature or ignorance of the top are a million dollar questions unresolved. The Deputy Minister is fiercely and vigorously criticizing the professional negligence of lawyers and integrity of judges naming and shaming them in public. Deputy Minister’s defamatory statements are in the public domain while it is an uphill task for the BASL to proceed with the complex cases towards convictions due to the complexity of the law and procedure of the subject matter which is discussed by the academics and professionals worldwide.

It looks as if the lawyers in glass houses are trying to stone outsiders when they should be whiter than white in the conduct on disciplinary, finance, and professional standards and good practice and whether they live up to the expectations are questioned by the Deputy Minister. Are most lawyers and judges compatible with international standards on knowledge service and conduct is a sensible question posed by many.

Charges against the Deputy Minister is disobedience and acts of discourtesy towards the court of law/judiciary disregarding the laws and wilfully failing the course of justice are some components of the offences now faced by Dr. Anura Padeniya of GMOA on a complaint by Sarath Wijesiriya and Gamini Uyangoda under 105(3) of the Constitution which are pending. There are a series of serious judgements by the most controversial Chief Justice on summary justice in cases of Tony Fernando, S. B. Dissanayake, are landmark cases in the field of Contempt charges alleged to be miscarriage of Justice in the absence of a procedure has led to criticism here and abroad demanding a proper procedure adopted by the Supreme Court which has the power to draw up rules with the inherent powers and relevant Articles in the Constitution.

Allegations and counter allegations 

Let us now look into the justifications, gravity and impact of the complaints alleging bribery and corruption of some members of the Judiciary and the behaviour unbecoming of members of the legal profession consisting of 8000 members based on the definition of bribery and corruption which involves offers gratifications or acceptance by a Judicial officer S 14 (a) (b) Public Servant S17, Government Contractor S18, punishable by penal code imported as far back as 1883, on state officers and not the private sector. Commission to investigate allegation of bribery and corruption (act no 4 of 1958) deals with this subject in detail the concept, definition and the procedure of the entire process.
One wonders whether Ranjan Ramanayaka has made the controversial and irresponsible statements with no knowledge on the subject matter or understanding the gravity for media attention, or in the capacity of a genuine social reformer and self-appointed activist against bribery and corruption which is rampant and all over the society as a cancer is a doubtful question faced by the citizen. Now that the matter is in the hands of the BASL unanimously backed by its membership, it is advisable for Ranjan to be ready for the defence to be adjudicated by a lawyer turned Judge and prosecuted and defended by lawyers unless he appears in court in person.

Ranjan enjoys all the privileges given to a member of the legislature not popular among the constituency on overspending by way of continuous additional/supplementary requests who sold his car permit which is illegal irregular and unbecoming of an activist expected to be clean as ever. His allegations against the judiciary and lawyers are yet to be proved as those are generalized statements left to the public and court to decide. Conducting of disciplinary inquiries and compelling judges to resign in lieu of dismissal on scams is a common scenario in any judicial system consisting of human beings with weaknesses. These are matters to be weighed before the legislature and the court of law in future litigation/s.

Duty towards citizen/society by legal profession 

Other allegations on the lawyers/legal profession are on incompetency, professional negligence, laws delays, absence of acknowledgement of fees, defects in the disciplinary procedure of the lawyers are matters the lawyers /legal profession should give serious consideration to. How many lawyers follow the Consumer Affairs Authority act no 9 of 2003 and practice rules in Sri Lanka requiring the professional to issue a receipt for the services rendered (S75). How many lawyers issue receipts and declare their high fees charged these days on highly contested commercial disputes running into millions/billions which is rigorously implemented in the UK by the Solicitor’s Regulatory body, and the slow pace and inefficiency in the complaints procedure of the litigants are matters the BASL should take into serious consideration.

It is in the public domain that a vociferous lawyer now dissociated with a wealthy NGO engaged “in regime change” was amply compensated by being retained for an inquiry which has taken a few days who charged nearly Rs. 4 million and not given the breakdown as required by rules in Sri Lankan jurisdictions and which is an offence in the UK and Commonwealth jurisdictions, as alleged in various websites. Nowadays fees are taken in millions monopolising the profession in some areas. In the UK the disciplinary inquiry system is streamlined with laymen too on the inquiry board and removing the solicitors from the roll of solicitors is a common occurrence. Ranjan Ramanayaka may be justified in putting some errant lawyers on the dock on corrupt practices, dishonesty and inefficiency.

Way forward 

These threat and counter threats are eye openers for the legislature and the professionals tarnishing the image of the citizen and themselves with the protection of parliamentary privileges and powers of powerful legal profession/lawyers dominating the Executive and Administrations which requires complete rethinking and overhaul the practice guidelines, conventions good practice, and good governance with no corruption and misuse of public funds.

The BASL has not fulfilled their obligations and duties towards the nation on Constitution-making process which is imminent when local and international invisible forces with different agendas are busy in formulating the process of drafting of constitutions directing, advising and arms twisting in the drafting process of the supreme law of the nation deciding the fate of the future of the nation and future generations!

Author is a former Secretary of the BASL and ex-ambassador takes full responsibility of the contents and could be contacted on sarath7@hotmail.co.uk