The Bar’s abandonment of commonsense and reason

*I saved Mahinda from the electric chair-MS
*Video: Ex-CJ says if not for his order 

Sunday, September 03, 2017

In taking umbrage at Deputy Minister Ranjan Ramanayake’s ‘politico-talk’ on corruption of lawyers and judges and thereby allowing this to become a bone of contention so to speak, the Bar Association of Sri Lanka clearly lacks both commonsense and reason to the point of absurdity.

If the Bar proceeds to take legal action against him for contempt, no doubt this will delightfully spiral out of control. The Deputy Minister will use his privileges on the floor of the House to defend himself with vim and vigor. The resulting uproar will convert a sober discussion on the law of contempt into an explosion of ‘sound and fury’ signifying precisely nothing.

 

Gone are the legal giants of yore

 

It is a pity that the Bar seems quite unable to perform its functions with a modicum of native intelligence. For the past several years, the interventions of this once premier body has swayed much like a demented yo-yo from side to another under the leadership of one President or the other, tilting too much to one extreme at each point whilst abandoning positions of moderation and principle. Gone are the legal giants of yore at whose sternly authoritative voices, the political leadership of the day once virtually trembled. Despite personal political predilections, these counsel of stature had the capacity to take public positions untroubled by primitive bias.

 

Now we have a far more pedestrian reality. Politicians proliferate even at professional social events to celebrate the ‘conferral of silks.’ This may be understandable given that this is seen by the public more as a political favour than as an earned tribute. And in a palpable if not very public irony as we saw recently, these very ‘silks’ allow themselves to be conducted with pomp and circumstance by the now departed Minister of Justice to the Presidential Secretariat, to be lectured to on the virtues of fair and impartial practice of the law. That would be vastly amusing if it did not so thoroughly reflect on the comprehensive degeneration of professional values.

However, I do not selectively single the sitting President of the Bar alone for censure. The responsibility of the immediate past President and numerous cheer groups in inciting (this word is used with great deliberation) President Maithripala Sirisena to dismiss a sitting Chief Justice by executive fiat in 2015, scarcely before the dew had dried on the January electoral verdict, was wholly unwise. It cast a dark shadow and caused many of us to shy away in alarm.

 

Is contempt attracted by partisan political opinions?

Even now, this promises nightmarish consequences with the potential to haunt the country at any given point if and when political fortunes of those in seats of power change. Similarly, the ‘pressing’ for a particular provincial lawyer to be appointed a judge of the High Court was deplorable at the time. To wit, the protestations of those at the helm (now and then) that they act entirely uninfluenced by political considerations are fit only for the credulous.

Neither does this critique mean that personal calumny leveled at judges in web based media is acceptable. This is gross intimidation which should be stopped forthwith. But when battles are chosen, the ground must be prepared strategically. Singling out this garrulous Deputy Minister for his comments is manifestly not a felicitous choice.

 

Many years ago, former Minister of Foreign Affairs, the late Lakshman Kadirgamar put the matter in issue mischievously but very well. This was in response to a Supreme Court ruling holding the provincial correspondent of the Divaina in contempt for reporting an opposition parliamentarian who claimed that an ongoing case filed by Mrs Sirimavo Bandaranaike, the opposition presidential candidate ‘had already been proved and if the petitioner did not win, that would be the end of justice in Sri Lanka.’ Mr Kadirgamar questioned as to whether ‘the exclusive judicial function of the Court to determine cases is really usurped by an unbalanced and patently partisan opinion expressed by some politician? If so, then in every home and on every street corner, every day, thousands of contempts will be committed…

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Sage advice that is disregarded

And then there is the celebrated instance when British law lords refused to be provoked after an eccentric lay litigant threw one book and another at them following an adverse ruling. In ‘The Due Process of Law (1980) Lord Alfred Denning points out, ‘we took no notice as this would have given into her desire to draw more attention to herself (and) she left saying: ‘I congratulate your Lordships on your coolness under fire.’ But this is sage advice that has been observed more in the breach here.

 

To put it mildly, our law on contempt has been as unstable as the Bar under its leadership at various times. At one point, we had an ex-Chief Justice Sarath Silva who sent a lay litigant to jail for reading out the provisions of the Constitution loudly in court. In any other country with professionals possessing an element of conscience, this would normally have evoked outrage. But the leaders of the Bar, formal and informal, were silent at the time. Other outfits ostensibly monitoring human rights also seemed to to prefer discretion to valour, some cowering in fear that contempt rulings, frequently threatened by this Chief Justice, would be waved against them in turn.

Examining the complaint of the lay litigant following his torture in prison in a petition filed under the Optional Protocol procedure of the International Covenant on Civil and Political Rights by this columnist as his advocate, the United Nations Human Rights Committee echoed domestic calls for a fair and equitable law on contempt. Too much discretion is vested with the judiciary which is dangerous as this has the potential of misuse, it was opined. Years have passed since this recommendation. Various drafts on contempt of court have been in the public domain. None have been pursued with any degree of professional commitment.

 

An unfinished challenge

To be fair, the Supreme Court of Sri Lanka is now in the main, engaging itself in more measured and judicious decision making than we have seen in quite a while. Threats of contempt are not casually issued by the appellate courts against luckless citizens as once was the case. That is certainly to the good. Regardless, the codification and reform of the law of contempt remains an unfinished challenge.

 

Perhaps this is one task that the Bar might usefully apply itself to instead of breathing publicity-grabbing fire on politicians who, after all, will only welcome the challenge.