A Political Judge Or A Political Chief Justice Can Cause More Damage

By Upul Jayasuriya -March 30, 2013

Upul Jayasuriya

Ven. Maha sangha, Your Lordships Judges of the Supreme Court Hon. Attorney General, Your Lordship President of the Court of Appeal and judges of the Court of Appeal, other judges Your Excellencies of foreign Missions, Distinguished guests Ladies & Gentlemen, I would like on this important occasion to thank all of you for the overwhelming support I received at the last election of the Bar Association of Sri Lanka. In the annals of the records of our association, the pattern of voting for the last election of office bearers reflects a rare trend. A clear unanimity amongst lawyers was reflected in the voting. While I take pride in receiving your trust and confidence, I am not so conceited to think that it was merely because of my popularity that this pattern of voting has emerged in our association!

Such undisputed commonality in the voting pattern at the recent election is testimony to the fact that all of us in the legal profession feel anxious and worried in regard to common problems. The legal profession faces tremendous challenges which are linked especially to threats to the independence of the judiciary which is the very foundation of our profession and democracy in our country. The strength of the Bench and the strength of the Bar are both closely linked because the Rule of Law requires that they complement each other. The bond between the independence of the judiciary and the independence of our profession is so deep that we may call ourselves twins. Indeed, we stand or fall together. Our own experience in Sri Lanka today reminds us of this critical link between the independence of the judiciary and the legal profession.

Phrases such as the independence of the judiciary and the Rule of Law may sometimes invoke cynical smiles rather than cheers. Yet may I crave your indulgence to briefly explain why I think these phrases are of fundamental importance to the Bar generally and to our country at this important time in our history?

The Beijing Statement of Principles of the Independence of the Judiciary (assented to in 1995 by the Sri Lankan Supreme Court under the stewardship of retired Chief Justice G.P.S. de Silva) quite rightly warns that judicial independence is essential to the proper performance of the judicial functions in a society committed to freedom and the rule of law.

Confidence in the administration of justice depends upon the public recognizing that judges act according to law and are free of pressure or interference that impact on their role and responsibility. If this confidence evaporates, so does public respect for the judiciary. To endeavour to maintain public confidence in the administration of justice is a grave responsibility that rests on judges themselves as much as on those in power. As we have seen to the detriment of the judiciary since 1996, threats to the good name of the judiciary can emanate from within judicial ranks as well as from outside. A political judge or a political Chief Justice can, in fact, cause more damage to the morale of the judiciary than an unscrupulous politician. Yet it is the solemn duty of the Bar to face these challenges with firm resolve, to stand up to judges acting according to political dictates rather than the judicial conscience and on the contrary, to defend judges who defy political commands at the expense of their civil liberties and sometimes, their very lives.

These are questions that have become peculiarly important to us at this time, perhaps more so than at any other point in the history of this association. One of the dark moments that all lawyers regardless of their personal political affiliations, are likely to remember for a long time, is the sending of police and hoodlums who were exercising police functions into Hultsdorp some months ago purportedly to prevent the 43rd Chief Justice, Dr Shirani Bandaranayake from entering the court premises. When the doors of the courts in Hultsdorp were closed to the judges nearly three decades ago, then Chief Justice, the late Neville Samarakoon characterized it as the greatest assault on the courts in their entire history. Yet it could fairly be said that the above incidents in the heart of Hulftsdorp a few months ago was even worse. The court premises in Hultsdorp are the symbol of the people’s freedom. The executive must not be allowed to extend its armed fist and tread there with police boots. The executive’s trespass into the court premises must be condemned and we must never permit such a situation to reoccur. I pledge that the Bar Association, under my Presidency, will do all it can to prevent such gross interference with the judiciary, an institution which should be the very foundation of the Rule of Law in our country.

The last election took place shortly after the purported removal of the 43rd Chief Justice of Sri Lanka in procedures, which the bar rightly saw as a violation of the norms of fair trial that we all cherish. These norms guarantee that an impartial inquiry by a competent body should decide on any charge leveled against an individual. In each day of our lives, in our professional work, we try to guarantee this right of a fair trial to our clients whatever their social or economic status and standing. Every night, as we study our briefs and every working hour we spend in court, this is our preoccupation. Ensuring fairness is not just rhetoric for us but the very essence of the vocation to which we dedicate our lives. It was therefore natural for all of us to stand up for the defence of this right for the 43rd Chief Justice. It was a struggle that went beyond personalities and focused on the issues. This struggle was conducted in the full glare of public scrutiny, in spite of a biased state media which blatantly flouted the concept of contempt of court in obeying the instructions of those in the seats of political power.

I pledge that I will carry forward all the ideals and values that we stand for collectively in non-politicized activism. The Bar Association shall march with the avowed objective of protecting the integrity of the Bench and the Bar. Any government in power must respect the judiciary and the judgments that are handed down by the court. Failure to do so is a violation of public trust and it is the duty of the Bar to protect the judiciary from political interference.

I am aware that the times are difficult and that the responsibilities you have placed on me require me to give leadership to our Association and defend our right to practice our profession in freedom and dignity. Despite the difficulties we are faced with, we have no other option as members of our profession but

to work together,
to talk together about our common issues;
and be advocates for our own professional values and the Rule of Law;
Our own cause and the cause of every citizen in the country
who wants to seek justice have now become one and the same.

If we lose our struggle for professional integrity, if we cannot defend our right to practice our profession with dignity and independence on the basis of the highest principles on which the profession is founded, then every citizen of the country who seeks justice will be at risk.

The judiciary and the Bar must be united in our struggle for the independence of the judiciary. The Judicial Officers Association needs to be specially mentioned in regard to the efforts that they have made to strengthen the understanding of the role and responsibility of both Bench and Bar in ensuring respect for the Rule of Law and effective administration of justice. We must work together to keep these principles alive in our beloved country. I shall pledge that the Bar Association of Sri Lanka will stand with them in their hour of need should there be a necessity.

The problems we face have come into even sharper focus with the adoption of the 18th Amendment to the Constitution, which has for all practical purposes abrogated the provisions of the 17th Amendment. These constitutional changes have aggravated the authoritarian character of the 1978 Constitution and caused problems not only to the Bench and the Bar but also to all public institutions in the country. Where the judiciary is concerned, appointments to vacancies are kept pending as a matter of course at the whim and fancy of the executive. This is not a healthy situation. Judges must be given security of tenure, there must be independent procedures put in place for their appointment and removal and they must be financially secure. However, the obnoxious practice of conferring privileged positions on judicial officers after retirement at the discretion of the executive “must stop”…..This compromises the integrity of the judiciary without a doubt.

Equally affected are those institutions which are more directly linked to law enforcement and the administration of justice, namely the Attorney General’s Department and the police. I am not making a controversial statement when I state that both the police and law enforcement system and the Attorney General’s Department have faced serious problems due to politicisation and the loss of professional independence. It is no exaggeration to say that there is a public recognition of the serious negative impact caused to the administration of justice according to the Rule of Law by the undermining of these institutions. It is our responsibility to collectively strive to remedy this crisis of confidence.

Most importantly the principle of equality before law is being increasingly undermined in Sri Lanka. Public cynicism is widespread in regard to the manner in which this principle has been ignored. There is impunity for politically influential persons who openly violate the law. Others who may, under normal circumstances not be penalized, are being arbitrarily punished. This topic is part of the common conversation throughout the country. There is a glaring disregard of our penal code and the criminal procedure code. This should be of serious concern to the legal profession. There is a growing tendency for people to take the law into their own hands resorting to other means of dealing with disputes and even crimes. This greatly undermines the courts as well as the legal profession.

We are aware that in several countries where the rule of law has been undermined, litigation has been reduced to many forms of bargaining. In fact, often, it is nothing more than bargaining. Legal text and court judgments, including volumes of new law reports and other law reports are of little relevance when people decide that it is more effective to seek the patronage of politicians or even some criminals and other powerful persons in order to get their disputes or even cases settled. The fundamental threat posed by the undermining of the principle of equality before law, especially in administration of criminal justice can no longer be ignored by our profession without risking our survival as a profession.

The above issues that I have raised are relevant in deciding the kind of Bar Association that we want. We must recognize the fact that there has been serious criticism of the Bar Association by the public as well as by our own membership. These criticisms have been reflected in public discussions as well as in literature published by members of the legal profession. These criticisms reflect public concerns and the Bar Association must take these concerns seriously. We must not let the ‘great expectations’ on which this election was conducted yield to ‘compromise, capitulation and finally utter ignominy’ as has been phrased in one such relevant criticism. In the next year, in my office as President BASL, you, the members of the Bar, whom I am supposed to lead, will no doubt judge me on this steadfast commitment that I make. I only ask that the members of the Bar stand together in the attempt to make our association relevant to our times as well as in attempting to resolve the problems of the profession. We must work in solidarity with other professional groups and civil society groups in the community. The integrity and independence of legal systems and judicial institutions and the very law itself cannot be of concern to only judges and lawyers. Rather, it is of paramount concern to each and every citizen in this country.

International associations of lawyers such as the International Bar Association, many Bar Associations from countries in various parts of the globe including Law Asia have expressed solidarity with us in our struggle to protect the dignity and independence of the judiciary and the legal profession. It is a matter of regret that a team of senior jurists, led by an eminent Indian jurist and a former Chief Justice of India, who wished to come to Sri Lanka for the purpose of understanding the circumstances relating to the purported removal of the 43rd Chief Justice, Dr. Shirani Bandaranayake on behalf of the International Bar Association, were denied visas for travel to the country. The Bar Association of Sri Lanka needs to work in close association with their colleagues in other countries. Legal professions are based on common norms and professional values, irrespective of the country in which lawyers practice their profession. Therefore the Bar Association needs to intervene to ensure that all professional associations of lawyers and judges throughout the world have access to the members of the legal and other professions in this country, in order to discuss problems and issues of common concern.

The future of legal education is also of considerable concern to us. We owe to those, who will join tomorrow a profession that we seniors will eventually leave, a pledge to ensure high quality legal education. We must ensure, through our efforts to strengthen legal education, that they can enter the temple of justice without cynicism, and with a deep sense of understanding of the role and responsibility of our profession in society.

As the newly elected president I have shared these thoughts with you because it is essential for us to appreciate that we are a profession that has many promises to keep. We will not betray those promises. Having assumed the office of President BASL, my endeavor will be to harness your support and collectively work with other professional civil society groups to bring the Bar Association of Sri Lanka to a state of political-social-legal relevance to this country. This is a struggle that I will carry out with deep conviction and with no compromise on those core and abiding values of our profession that continue to have relevance and meaning in these difficult times.

We as the Bar, respected members of the judiciary and the public of this country must face together common challenges with courage and commitment. We will overcome storms and demonstrate that lawyers are a relevant and important profession in our country.

As the great poet Rabindranath Tagore said

Let me not pray to be sheltered from dangers,
But to be fearless in facing them.
Let me not beg for the stilling of my pain,
But for the heart to conquer it.
Let me not look for allies in life’s battlefield,
But to my own strength.

*INAUGURATION ADDRESS – UPUL JAYASURIYA, PRESIDENT, BASL