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Thursday, May 23, 2024

All institutions under political influence and threat – President of the BASL

Harassment to 43rd CJ continues

Hulftsdorp is buzzing with activity following the summoning of controversially impeached Chief Justice, Dr. Shirani Bandaranayake, to Court after the Bribery Commission began investigating her alleged failure to declare assets as statutorily required. The impeachment of Dr. Bandaranayake, which was in defiance of a Supreme Court order, sparked widespread condemnation from the unofficial bar and the international community.
Meanwhile, a ‘cold war’ appears to be brewing between the upper judiciary and the unofficial bar, sparked by the decision of the Bar Association of Sri Lanka (BASL) to boycott the ceremonial welcome sitting for incumbent Chief Justice, Mohan Peiris, and the BASL’s exclusion from the ceremonial sitting to welcome Supreme Court, Justice Rohini Marasinghe. Ceylon Today spoke to President of the BASL, Attorney-at-Law, Upul Jayasuriya, regarding the notice issued on the former Chief Justice, the apparent rift between the BASL and Supreme Court, and the hurdles facing Sri Lanka’s legal system.

Following are excerpts:

Q:  Many independent commentators have voiced concern about the perceived breakdown in the Rule of Law, mirrored by increasing criminal tendencies among politicians. What is the response of the BASL to this development?

A: Yes. At the last Bar Council meeting we decided to call in all 80 outstation bars and go into the notice of such aggrieved parties, who cannot get legal representation and support them. We decided to see to the interests of the prosecution in cases against these so-called ‘high and mighty’, politically blessed parties.

Q:  What in your opinion are the primary contributing factors to this situation?

A: This is a matter of political tolerance. Certain higher authorities are mollycoddling individuals up to mischief of this kind.

Q:  Do you think there is a link between the 18th Amendment and the apparent culture of impunity prevailing among politicians today?

A: Certainly there is a link, since the process of appointing judges to the superior judiciary has been compromised. The judges I speak to admit they have to be in the ‘good books’ of the authorities to protect their families and obtain their overseas trips. These are baseless explanations. If they cannot ‘bear the heat, they must get out of the kitchen.’ The absence of independent commissions, as a result of the 18th Amendment, has led to the Bribery Commission not performing its mandate, but instead, the mandate of the people that appointed them. The public is shocked and appalled at the current order and even the police. Whenever the police commit crimes, they are backed by politicians. The entire social fabric is fraying.

Q:  You alluded to the fact that some judges may sacrifice their independence for material comforts. What is your message to them?

A: That is shocking. All I can say is the positions we hold are temporary. Judges that once took arbitrary decisions on the bench are taking them today without any seriousness.

Q:  Do you observe a decrease in the number of people litigating, due to an apparent loss of confidence in the administration of justice?

A: This is not seen in commercial cases between private parties. In such cases there are issues because parties are not granted freedom to engage in business within the framework of law, but according to the whims and fancies of the authorities. Not many people are filing fundamental rights petitions before the Supreme Court.

Q:  Several economists have expressed the view that the prevailing uncertainty in the legal system is a primary factor behind lagging Foreign Direct Investment (FDI) in Sri Lanka. Do you think the current legal environment is not conducive for investment?

A: Of course. Consider the Expropriation Bill. The immediate explanation provided by the government for taking over the six institutions under this Bill was that these institutions are loss-making ones. But since the takeover happened, has even one of these institutions improved its fortunes? The State cannot even afford to pay salaries in some of them. The government is exercising its muscle power, definitely not for the betterment of the economy.

Q:  If the current trend continues, do you think, Sri Lanka will be unable to attract the level of investment necessary for post-war economic take off?

A: Yes. Some of the companies acquired via the Expropriation Bill involved foreign investments, from the UK for instance, where an investment protection treaty was entered into prior to the investment. According to Article 157 of the Constitution, when a Bilateral Investment Protection Agreement (BIPA) is signed the government has a duty to protect the investments. But nothing is being done to ensure investment protection. The diplomatic community has said both publicly and privately that they are appalled by the situation. The media is being allowed to talk of certain criminal elements connected to the powers that be, but with the reservation of one family. The media can talk of anything but that family.

Q:  The opposition asserts there is a trend in the current order of releasing on bail criminals, who have ‘political patronage’ while remanding those who lack political favouritism. Your thoughts

A: This situation exists not only in the case of bail but also in the case of initiating criminal proceedings. For instance, it has just been heard that the Attorney General (AG) has decided to file a direct indictment against Provincial Councillor Ananda Sarath Kumara, who forced a teacher to kneel before her students. But then what about a direct indictment for a Member of Parliament (MP) involved in a quadruple murder case? There is no logic in this selective institution of legal proceedings. If there is no direct indictment in a murder case like this, there is a possibility of even tampering with witnesses with the kind of money certain individuals now possess.

Q:  The murder of British tourist Kuram Shaikh in Tangalle, where a Pradeshiya Sabha (PS) Chairman is allegedly complicit, has sparked outrage in the UK. Why, like so many other cases involving ruling party politicians, has the AG’s Department failed to institute legal proceedings?

A: All institutions are under political influence and threat. I don’t think even the AG has been spared. If so, the former AG would not have ended up in the Supreme Court without a desire to be elevated to the bench. This is because of the absence of a Constitutional Council brought in via the 17th Amendment, which was historically assented by 225 MPs.

Q:  The opposition asserts the transfer of lower court judges is done in an ad hoc manner, so as to ensure that a pliable judge hears politically sensitive cases. Why has the BASL failed to vehemently protest this?

A: We have been taking up these matters but the judges are not willing to come forward as they fear there will be reprisals against them by the authorities. They accept transfers with the desire to please the authorities.

Q:  Critics assert that BASL can do more to protest against this, apart from the usual statement of condemnation to the media. What do you have to say to these critics?

A: We have not confined ourselves to media statements and have advised people who are at the receiving end of political persecution to refer these matters to the BASL, so we can provide the necessary legal assistance. The BASL has already dispatched a special team of lawyers to handle the Matale mass grave and have also decided to take on the Deraniyagala incident, in which the police have been largely inactive.

Q:  Notice has been issued for the 43rd Chief Justice, Dr. Shirani Bandaranayake, to appear in Court over her alleged non-declaration of assets. What is the BASL’s stance on the summons issued to her?

A: This is a political ‘witch-hunt.’ Three plaints were filed against her. When a plaint is filed one is given the impression that investigations in this regard have been concluded. But, she has been sent a letter to appear before the Bribery Commission on 15 August to record another statement. This is a complete mockery of justice. So many complaints are lodged at the Bribery Commission against politically influential people and government ministers. There are two serious complaints regarding the mishandling of Rs 12 million and Rs 2.5 billion by the Governor of the Central Bank. Not a single case has ended up in a prosecution.

Q:  Does the BASL maintain that Dr. Bandaranayake has fully complied with all the asset declaration laws required of any public official?

A: All that we are aware of is that the charges filed against her in Court have no basis. It is completely baseless and would have never been filed if ordinary prudence was applied by the people in authority.

Q:  While the former Chief Justice is accused of failing to lodge her asset declarations as statutorily required, reports indicate that several MPs too have failed to do so. What are your views on this?
A: More than half the MPs have not declared their assets. But where are the prosecutions? In relation to Dr. Bandaranayake, it is shocking that there has been an account allocated to her by the bank, not at her initiation, as a matter of procedure, for the matured repo account to be credited and then re-invested in another repo account for a three-six month period. The account referred to in the list of charges had zero balance at the time of declaration. If a bank account has zero balance, then it is not an asset and it obviously does not come under her asset declaration and there is no violation.

Q:  Is the BASL going to take any action towards highlighting these apparent double standards in prosecuting public officials that have failed to comply with asset declaration laws?

A: We are summoning an Executive Committee (ExCo) meeting on 8 August to take up this matter and we will not look back.

Q:  Several legal luminaries have mooted the former Chief Justice is being unduly persecuted and her persecution is being spearheaded by the Executive. Do you agree?

A: I can’t say who in the government is responsible. It is left to the Bribery Commissioners to decide whether they are discharging the public trust in compliance with the high standards expected of them.

Q:  Many legal commentators still consider Shirani Bandaranayake ‘the duly appointed legitimate Chief Justice.’ Does the BASL also subscribe to this view?

A: According to an order delivered by the Court of Appeal, the Parliamentary Select Committee (PSC) report has been quashed, which means it does not exist in legal terms. Constitutional provisions state that a judge cannot be removed from office in the absence of a Select Committee report, but in this case, there was no such report. Also according to the Constitution, Parliament must make an address to the President for the removal of the judge concerned. In this case there was no address by Parliament to the President. This is nothing but a comedy of errors. The Bar is bound to uphold the judgment of the superior courts.

Q:  During the impeachment of Dr. Bandaranayake, the public looked to the BASL for leadership in order to champion the independence of the judiciary. Several critics have voiced that the BASL failed to provide the expected leadership during the impeachment. Your thoughts?

A: The office bearers of the BASL faced a lot of pressure at that time. But when the BASL membership was summoned for a meeting on 15 December 2012, they took some stern decisions. You cannot find fault with the BASL because the decisions taken at the meeting have been fully implemented.

Q:  Just as the BASL faced pressure during the impeachment, judges also face immense pressure from the authorities today. So isn’t it perhaps unfair of the BASL to expect judges to act independently of this political pressure, when the BASL might have failed to do just that during the impeachment?

A: Judges are bound under oath to protect and safeguard the provisions of the Constitution. So there is no question of pressure or no pressure. Judges have to do their job like anyone else. If they can’t do their job they must get out!

Q:  Many are of the view that the opposition took a lackadaisical approach in opposing the impeachment. Don’t you think a politically active opposition is critical for the BASL to be effective in opposing the apparent persecution of the former Chief Justice even after the impeachment?

A: I don’t like to comment on political parties. It is for them to decide what their political future should be. The opposition must obviously be active, but it is not just the opposition; the professionals must also be active. The doctors and academics, watched the impeachment progress in silence. They have forgotten that it is them who will ultimately suffer if there is no Rule of Law in this country.

Q:  When compared to countries such as Pakistan, the impeachment and subsequent misfortunes faced by the former Chief Justice have been met with little public outcry. Is it fair to say the public interest in this matter has faded?

A: The problem in Sri Lanka is the ordinary village folk do not understand the happenings in Colombo or pertinent judicial matters. It means nothing to them. This is a matter for the educated people in this country. If the educated people are silent, what more can we expect?

Q:  There is still a lobby within the Bar who supported Dr. Bandaranayake’s impeachment. What do you have to say to this lobby?

A: They need to read, understand and respect the judgments of the superior courts. The judgment of the Court of Appeal has rendered the PSC proceedings a nullity. So even if you take steps to reverse this judgment, the resulting action, which flowed from the PSC report, does not hold good now. You have to restart proceedings from scratch. Even if the order of the Appeal Court is reversed, it does not qualify what has occurred as legal. What has been done is illegal and will remain illegal.

Q:  The BASL decided to boycott the ceremonial sitting to welcome the 44th Chief Justice Mohan Peiris. Looking back does the BASL still feel this was the right move?

A: We never regret any decisions we’ve taken. We acted on our decisions quite consciously and there is no turning back.

Q:  There appears to be a ‘cold-war’ between the upper judiciary and the unofficial bar, with the BASL not being invited for the ceremonial sitting to welcome the newly inducted Supreme Court Justice Rohini Marasinghe. Are you not concerned by this?

A: A ceremonial sitting is a tradition. It is the call of the Bar, whether or not to welcome a judge. There will be a ceremonial sitting only if we decide to welcome a judge and not anyone else.

Q:  Don’t you think public confidence in the legal system will be eroded if this apparent ‘cold-war’ continues?

A: Public confidence in the legal system is not dependent on the relationship between the Bar and the Bench. The attitudes of the respective courts towards public issues and matters of public interest measure public confidence. This is completely in the hands of the judiciary, and it is up to the judiciary to win the confidence of civil society.

Q:  Why did the BASL register its concern over the recent elevation of Justice Rohini Marasinghe to the Supreme Court?

A: Justice Marasinghe was third in line in the appeal Court. There was no cogent reason for her to be promoted sidestepping the President of the Court of Appeal.

Q:  So you believe the President of the Court of Appeal Justice S. Sriskandaraja has been unduly overlooked in the case?

A: Definitely. He has been sidestepped, not once, but several times. Even now there is a vacancy in the Supreme Court, so why is he not being elevated?

Q:  What is the BASL’s message to the government with regard to Dr. Shirani Bandaranayake and her summons to Court?

A: The BASL ExCo will take a strong decision, not only to prevent the 43rd Chief Justice from being persecuted, but also to prevent persecutions of persons who are on the wrong political side

by Sachin Parathalingam



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