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Sunday, December 3, 2023

Chaos theory: connecting the dots

[In interview with Upul Jayasuriya, President of the Bar Association of Sri Lanka (BASL)]

by Maheen Senanayake –
“No man has a natural right to commit aggression on the equal rights of another.” – Thomas Jefferson

I found Mr. Upul Jayasuriya, incumbent head of the Bar Association of Sri Lanka, getting ready for the customary BASL meeting on the last Saturday of the month yesterday morning. Over breakfast I threw at him all I had – question-wise!

What is your take on the task and role of the Bar Association?

The Bar Association, by its constitution has an objective that states that when there is a breakdown of the rule of law and a threat to democracy we are obliged to get involved in pursuance of the preservation of the rule of law and democratic values of society. This is what amongst other things we have got involved in.

If we go back a couple of years, we had the impeachment of the former Chief Justice and an entire discourse on the privileges of Parliament and the status of the judiciary. What is your take on all that?

In the matter of the impeachment of the former CJ at that time, she had filed action in the Court of Appeal asking for a writ. And the matter was referred to the Supreme Court for a determination. In the determination as to whether the Court of Appeal had the power, the Supreme Court ruled ‘yes, you have the power.’ Then the Court of Appeal went ahead with the hearing and issued a writ. Despite both these rulings, the determination by the Supreme Court and the writ being issued by the Court of Appeal quashing the Select Committee proceedings, it (Select Committee) proceeded. Rightly or wrongly there was an order.

Another point is that she (the former CJ) was provided a thousand pages (1,000) the day before the hearing. Rightly she said ” If you want me to read all this documentation you need to give me some time”. The committee said “no”. She then said “I want to bring so many witnesses”. They said “no” and further said that “these proceedings were going to be limited to documentary evidence and nothing more”.

Then of course there was the matter of very bad language also being used and finally she and her lawyer walked out, followed by the opposition who also walked out. Soon after that, Sixteen (16) witnesses were led into the select committee proceeding headed by a lady justice and this is the kind of treatment that has been given to her.

You have to remember that the Constitution requires that there should be an address by Parliament to the President seeking her removal. Then at the 11th hour, UNP parliamentarian John Amaratunga raised an issue saying – look “what you have tabled before parliament is not an address for her removal but a motion to appoint a select committee to probe into the so called allegations against her.’’ So it was a comedy of errors. The Speaker adjourned parliament for about 20 minutes and with whatever consultation came back and said “sorry! we have gone too far in this therefore we will proceed”. So what was passed in Parliament was not a motion to remove her. He laughs over his stringhoppers. Whatever others have to say about it, “she has not been removed”.

“Is she then still legitimately the Chief Justice?”

She is legitimately the Chief justice. But of course the government has steam rolled everyone and everything and gone ahead with the appointment of another.

In this backdrop, what are the sentiments of the BASL membership ?

It is for this reason that the BASL refused to welcome the new Chief Justice. It was never about the personality. All personalities at the bench are of high standing. There is no question about that. Also in our fight on these issues our struggle was not to stand by Dr. Shirani Bandaranaike. Our fight was to stand by the Rule of Law. The law has to be followed to the letter and that did not happen. The subsequent action taken in pursuance of this struggle were also taken on objective basis and not subjectivity.

On the same subject, how large is the BASL membership ?

We have about 12,500 paying members.

Do you think that the political affiliations of the membership of the BASL reflect the political divisions of the country?

The Bar is diverse. A large number of lawyers have political affiliations. They are free to have them. The Bar has no political angle to view things from. We only look at things from the perspective of objectivity. We are focused on the matter at hand and we do not get clouded by peripheral issues.

Every system generally has checks and balances. As for the legal framework, what mechanisms exist in the form of checks and balances?

To keep the system in place, we must maintain at all times the independence of the judiciary. How do we maintain the independence of the judiciary is the next question. We should appoint judges on seniority and eminence. Has it been complied with? That is more in the breach than in the compliance. We have taken this matter up in the best possible way. The other point is that these judges hold office and over time they retire. Soon after, some judges are given appointments as High Commissioners, as presidential advisors and so on and so forth. This all goes to prove that they have not been independent when they were holding office. It doesn’t augur well for what they have done when they were sitting judges.

In public forums the Bar has proposed that they too are human beings. Like in many other countries, and in even the USA, to ensure their independence they must be made financially independent. They should be sufficiently paid. It doesn’t end there, it must continue for as long as they live. I am referring to the apex court judges, all their perks and benefits must be provided. The Supreme Court and the appeals court have only twenty two (22) people. They should be given their full emoluments and perks until death without having to go on a retirement package. It is to purchase their loyalty that the executive and the governments has had a habit of offering perks on the basis of their performance.

If we look at a couple of cases in the recent past, the Tangalle case and the Royal Park case, I hear varying comments on the outcomes. Do you think that justice was meted? I have met some people who jokingly say that if you kill the boyfriend and gang rape the girlfriend you only get 20 years RI whereas if a provocation leads to a death you get life. What is your take on this?

There are a couple of legal issues that apply in these matters. From the point of the law there is first degree murder, then there is culpable homicide not amounting to murder. In the case of the Royal Park murder case he was convicted of culpable homicide not amounting to murder. He was given 12 years rigorous imprisonment by the High Court. Then the state appealed. This is a unique case. When the man convicted of culpable homicide appealed, the State also appealed and said that the judgment was wrong and wanted the man to be convicted of murder. The mandatory sentence for murder is death. The Court of Appeal overturned the judgment given by the High Court and on the basis that there was no grounds for culpable homicide not amounting to murder he was convicted of murder. In that instance the circumstances were that a boy and girl briefly went out and they had a big argument. They had no animosity towards each other. On the contrary they were in love. Obviously something has broken out suddenly and by the look of it there appears to be some kind of sudden provocation, which gives rise to culpable homicide not amounting to murder; but judges have looked at it in their greater wisdom determined that there was not sufficient grounds for culpable homicide not amounting to murder and that this is murder. So the earlier sentence was overturned and the accused convicted of murder. This set a benchmark because this decision was affirmed by the Supreme Court.

In the other matter is a situation where this foreign couple was peacefully in a hotel, they had paid for their accommodation and they were entitled to be where they were. The other party had come there for a drink and in their drunken behaviour this has happened. From what we saw in the papers there was no kind of provocation – I may be wrong but from what appeared in the public space that seemed to be the case. There was no provocation, there was no altercation and if at all it was when they tried to abuse the girl that the boy had tried to protect her.

He had every right to self defense, Her fiancé had the right to defend herself and in this backdrop the young man was murdered. Ex facie there doesn’t appear to be grounds for ‘culpable homicide not amounting to murder.’

So the people are not too wrong to be amused by these events! Then there was this article that said that on good behaviour he may be out in 12 years!

Maybe less! (chuckles)

This is more anthropological. What is your stand on the death sentence?

Well the first thing I would say is that the death sentence is not something that the police can carry out – which is what is happening now. When a case goes through the different stages through the hierarchy of the courts what you have to understand is that the best possible hearing has been given to the case. After that even the sentence is not carried out. But we have more than thirty five (35) people killed in police custody. Always whenever a person is accused of killing a police officer or even starting from the so-called prisons riots, they have just been killed and pushed under the carpet on the basis of justifiable murder. Every time a person gets killed in police custody the police have gone Scot free.

Leave that aside. That is also a death sentence being imposed. What is society and those who are responsible doing about that kind of death sentence? Nobody is talking about that. On the other hand the people on whom the death sentence has been imposed through a rigorous hearing process through three courts, it is not carried out. There is some…( he can’t stop laughing) there is some anomaly here. He lets that sink in.

One more thing he says. On the other hand people are killing people on the road. This is blue murder. There have been no action taken against those people also.

If you take the law and order situation in the country today, what is your take on this as a citizen?

Apalling. It’s a one word answer that I get.

Are there a reasonable number of members in the BASL who share these sentiments?

I think everyone shares this. With very few exceptions I suppose. We are shocked by what is happening around us. Whatever the political affiliations of the individual members of the BASL, they conveyed a very strong message when I was appointed to the presidency nearly one and a half years ago, with the highest number of votes ever in such an election. The situation is much worse now.

In the case of the the Dharga town incident there were armed STF personnel and policemen who did not act – people fully trained to combat such situations. The other people were armed with gas canisters or whatever they had. They could have been contained by a fully armed police force. But that didn’t happen. And they just watched. This is further corroborated in the fact that even the police have lost their independence to take action they think they ought to take.

This is the important thing. Even the Inspector General of Police (IGP) has to get approval from his Ministry Secretary.

The Ministry of Law and Order?

Very fast becoming the Ministry of No Law and No Order.

I asked for police protection with regard to the trailing of my vehicle. The government says that it is a truthful complaint and that it has been referred to the Ministry Secretary for approval. I wrote to the IGP. What does he do? He writes to me and states that he has referred this matter to the Secretary of his Ministry asking for his approval.

He repeats it for emphasis. “Asking for his approval”. What is the role of the IGP? Where is the Police Ordinance?

Of course the IGP is being truthful. He is not trying to hide it he is just telling me “ I am unable to take a decision here. My wings are clipped and my decision making role has been taken over by this man called the Secretary. This is a very pathetic situation. I don’t feel sorry for the IGP but I feel sorry for the entire system. As for the Beruwela incident in that context, obviously the IGP must have been waiting for instructions form the Ministry Secretary. He too wouldn’t have given the orders because he wouldn’t have got the orders from somebody else at the top.

On the same issue, the army went ahead clearing the site before the police could investigate. What is the legal position on this matter?

We were appalled and we went to court. In fact I personally went to court and made an application that usually when there is an arson attack the Government Analyst has to be brought to the site to determine why and how it occurred. They did not do that and were quick enough to clear the debris. And in some instances these canisters were found. People are not fools and they can come to their own conclusions about these things. Since they didn’t call the Government Analyst the court had to intervene and then stop the police from clearing the debris and ordered that Government Analyst be brought in. This is the kind of situation that we are in.

The BBS’s actions are hate related. What do you think?

I have written three to four letters to the Attorney General. The law is there to prevent this kind of situation. Particularly the Prevention of Terrorism Act 31 – hate speech creating disharmony between religious and ethnic groups, communal groups is prohibited; the law is there but some people are not giving the green light to prosecute these people.

Even the president has not got the power to decide who should be and shouldn’t be prosecuted. He only has the powers to pardon, a revision, but only after due process, not before.

What about terrorists ensconced in power?

Yes, there have been stories about apprehension of terrorists in foreign lands and brought back to our own land. What happened? Now some of them are star class citizens roaming free.

In Aranthalawa nearly 30 Buddhist monks were killed. At the Sri Maha Bodhi more than 150 people were killed – devotees including a bhikkuni. Those who are responsible are holding high office in the government.

What about bribery and corruption?

The reason the 17th amendment was introduced for this purpose. There is so much talk about eight complaints against ministers. One minister was asked to come to the Bribery Commission when he had 400 million in his account. Nothing is heard about him. He had reported that he had been bitten by a snake. I don’t know whether he had made it to the commission. But there is a lot that depends on the activism of the judiciary. Judicial activism is required.

The commission ought to take action irrespective of the political strength of the people concerned. This is very important to curtail large scale corruption. In fact I would say that the principle of tender procedure must be enforced. Tenders are not a thing of the past.
The Island


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