“Law and its sanction is based today on forced legitimacy”

Following is the address delivered by Justice C.V. Wigneswaran at the 39th Annual Convocation of the Bar Association of Sri Lanka on 30 March held at the Navarangahala, Royal College, at which Upul Jayasuriya was inducted as President for 2013/2014

• Justice C.V. Wigneswaran asserts a democracy cannot be expected to flourish under illegalities and/or uncertainties

Following is the address delivered by Justice C.V. Wigneswaran at the 39th Annual Convocation of the Bar Association of Sri Lanka on 30 March held at the Navarangahala, Royal College, at which Upul Jayasuriya was inducted as President for 2013/2014

Your Ladyship Dr. Mrs. Shirani Bandaranaike, President of the Bar Association Upul Jayasuriya, former Attorney General Sunil de Silva, my dear brothers and sisters! It was not very long ago that I had the good fortune to address the Original Judiciary at their Annual Judicial Officers’ Conference. I mentioned then that it took eight long years since my retirement for them to remember me. It was indeed a pleasant surprise when your President-elect just a few days ago, last Wednesday, called on me to invite me to address you. Despite the short notice it showed that the legal profession still appreciates though rather belatedly the values and principles for which some of us stood for at great inconvenience, when in recent times such values are getting watered down or eroded around us.

I have no doubt kept away from such inductions for some time preferring to lead a life of low profile and contentment, but of course finding out from friends and others as to what was happening in the legal profession as well as in courts.

Many of you might not know that I had been in the profession actively practicing for 15 years before being called to serve the Judiciary in 1979. In 1977 I was one of the young lawyers who went up to the late Neville Samarakoon, Queen’s Counsel, and invited him to come forward to contest the post of President, Bar Association. He said “Leave me alone! I like to lead a peaceful life!” He went on to elaborate on what he considered as essentials to his life-peaceful, which I believe is not relevant here!

But within a few months he had consented to shoulder the mantle of the Chief Justice of this Country. Soon after at a party I asked him, “Sir! You were reluctant to contest the post of President, Bar Association but destiny seems to have designed other plans for you.” He laughed, puffed at his pipe and said: “When J.R. called me and asked me to accept the office of Chief Justiceship I told him, ‘On one condition’. He asked what it was. I said ‘No interference of any sort’. He agreed. So I agreed!” he said. How thereafter President Jayewardene forgot his promise and interfered with the Judiciary and what that led to are part of our unfortunate history.

Bleak future

Despite the many regrettable incidents that have plagued our Legal System in the last three-and-a-half decades, the future of the profession did not look as bleak as it does today. For a person who is completing 50 years in the profession next year, of which 25 were on the Bench, the trajectory of the legal system has been depressing and most recently alarming. We are at the nadir in every aspect of our profession. None so alarming as the systematic institutional erosion.

The powers that be in this country are missing the wood for the trees, it appears. By interfering with the independence of the Judiciary they are disturbing the course of law and justice in this country for all time. To them, it appears, what are taking place in Sri Lanka are mere incidents or a series of incidents of inconsequential value. They are like the few trees visible to their eyes. But they do not appear to have any idea as to the avalanche that is to fall and pervade the entire judicial future of this country; the dangerous jungle into which we have stepped on. Bigoted and short sighted we are, we do not see the writings on the wall.

We must not flex our muscles when dealing with religions or courts of justice. However provocative any religious organisation might appear to be, flexing muscles at them is not the proper procedure to be adopted; especially when such organisations have emotive votaries not only locally but also outside our country. And again under the present context resorting to hoodlum tactics with courts of law too is also ill-advised.

The attack on religious freedoms radicalises the polity and unleashes dangers that cannot be controlled even by those who foster them. The attack on the temple of justice removes the only rational and non-partisan check on government and individual excesses. The combination of the two at present is both a time-bomb waiting to go off and a cancer spreading to other areas, at the same time.

The absence today of one of the special invitees, whose religion and whose profession are under attack, underscores the extent of the pressures exerted on even well-meaning individuals, and the debilitating effect it has on their ability to act according to their conscience. In this regard I thought the honourable Attorney General might come over to discharge his customary obligation without fear. But I do not see him here.

Boomerang effect

We have seen politicians who fan religious fervour paying with their lives to the extremists they helped create. I have seen politicians who tried to interfere with the law and courts of justice, later falling prey to their own machinations. It is best to discuss matters of importance regarding any religious organisation with their spokespersons or leaders rather than resort to violent tactics. So too it is best to allow the Judiciary to carry on undisturbed, conforming to the delineations set out by law for them. If we bend or seek to bend legal institutions to suit our whims and fancies however highly placed we are, then we would have to face such activities boomeranging on us.

For example J.R. Jayewardene bent the Constitution of this country to suit him and his party. But those who have reaped the benefit of his tomfoolery are not those from his party. Those currently indulging in such indiscretions must take a lesson from what J.R. did and what is taking place today. It would be too late when the boomerang strikes us, to retrieve ourselves.

We Sri Lankans have a tradition of becoming very agitated and emotional about matters that affect our society, political or otherwise, and thereafter forgetting such matters completely. We are emotional but with short memories. Perhaps this is an island trait of living for the moment. But where did we inherit the trait of opportunism so pithily described in Sinhalese as ‘vaasi patheta hoiya’? I found our judges and others in the legal profession who vociferously stood by the wronged Chief Justice of this country just the other day suddenly taking an about turn. It is the highest court that has to take the greatest responsibility but how spectacularly they have capitulated. The members of the original Judiciary and the members of the Bar rightly feel frustrated. Whether this disappointment will continue is to be seen. We must remember that we reap what we sow. President JR’s party inherited the effects of what he did in a negative way.

We are the profession

I believe I am senior enough to venture to make a few comments regarding our profession including the Judiciary. Let us remember that the profession is not different from each of us. We are the profession. And the profession is us. Therefore what each of us make of our professional life is the popular image we foist on the world at large. The popular image of our profession, I could assure you, is not at all complimentary. We are looked upon as parasites drawing the lifeblood of the society fattening ourselves but giving insufficiently in return.

Speaking of judges, sometimes they are found fault with for forcing settlements on parties when one of them has a very good case. Either they prefer not to labour themselves with the process of going through evidence and coming to a finding, or their sole concern is to show conclusion of cases for the record.

Sometimes judges are criticised for having their favourite lawyers in court. If so and so is retained, the judge would be favourable to us, is an oft-quoted comment. Due to such state of affairs, lawyers bend in half to become favourites of the incumbent judge. They are prepared to compromise their client’s case just to receive such judicial blessings.

No doubt a fair comment could be made in this regard if the performance of any lawyer appeals to any judge and it is borne out in court. But judges must be careful that they do not go out of their way to show any partiality. In the provincial courts, when I used to preside, I did not allow lawyers to see me in chambers unless they were accompanied by the lawyer for the other side. Otherwise all applications generally had to be in open court.

I kept a book with the Aaraachi in which every person who comes to see me in chambers had to write down his name and inform what he wishes to discuss with me. I tried not to allow the anger certain counsel may create in me in one case to affect me when the same counsel appears in another case the same day. It would be as if he is appearing for the first time that day before me. These were simple means by which comments about familiarity or antipathy towards lawyers were to a great extent avoided.

Another area I have found to be wanting is the lack of interest shown by co-judges in Appellate Courts when it comes to writing judgments. Since they decide on the judge who would write a judgment in advance, the other judges show no interest to study the case or write either a judgment of their own or even a dissenting judgment. As a result judgments are often scrappy and incomplete. If co-judges show interest the judge who writes his judgment would be more circumspective.

Despite Justice Mark Fernando being a brilliant student of the law i used to cross swords with him in his chambers on many matters pertaining to our judgments. Mark was such a patient judge he would discuss any matter fully and completely and sometimes change his opinion if he saw merit in our arguments.

Impeachment

I do not wish to comment too much on our faults. But I must say I accepted this invitation to address you today to commend the Bar Association under the stewardship of Upul Jayasuriya for taking the correct legal stance with regard to the office of the Chief Justice. This induction ceremony has given Chief Justice Dr. Shirani Bandaranaike an opportunity to air her point of view to the legal audience here and through the press to the people at large. I hope no self-confessed relative of some ancient Sinhala King would take it upon himself to create hooliganism at this meeting since that seems to be the order of the day.

We must remember that the so-called impeachment process against Chief Justice Dr. Shirani Bandaranaike was legally faulted. Both the Supreme Court as well as the Court of Appeal gave decisions in this regard. So long as competent courts of law have held that the process adopted was faulty, then those who advocated such impeachment should have gone to the relevant court or courts to have such orders or determinations quashed. They did not do so.

By not doing so a dilemma arises. If the existing orders are not reversed by a fuller bench and in fact do get confirmed in the future it would appear that all steps taken so far by the de facto Chief Justice would be illegal. Then irreparable harm and damages would be sustained by litigants whose cases were heard by a person who cannot be deemed to be the Chief Justice of this country under the law.

If the de facto Chief Justice continues to act as if his conduct is valid in law and hears applications, constitute benches and makes orders and determinations so positively and confidently expecting a divisional bench to reverse the orders already made, even if they do reverse the orders already made in the future, then the integrity and impartiality of the honourable judges who make such orders would come into question. The delay has already given way to retirements and there is delay in those entitled to succeed, being brought in.

If in the future suppose a fuller Bench of the Supreme Court would not be called upon to review the already existing determinations of courts, then it would become a mockery of the judicial system. We would have taken steps acting contrary to the findings of a court of law but would continue not giving the slightest importance to the valid orders and determinations made by the highest judicial forums of this country.

Of course an application might be made to validate steps taken already, retrospectively. Whether those who have knowingly violated the law should be given relief for their high handed act is a matter to be decided. But eventually that would bring the entire profession and the Judiciary into disrepute.

Thus there are inter alia three main possibilities and all three could lead to an impasse. If the orders already made are upheld and not reversed, if they are reversed or if no application is made to reverse, there could be adverse consequences. A democracy cannot be expected to flourish under illegalities and/or uncertainties.

Unenviable position

Let me tell you something that I heard had happened in the north sometime ago. A district judge had given an order with regard to a land case. The litigant who lost the case in the District Court went to a kangaroo court. The judge there, a young girl in her early twenties, was given a copy of the district judge’s judgment. She felt that the judgment was correct and mentioned so in court. But maybe because the litigant who lost the case in the District Court was an ardent supporter of their militant outfit she made some variations which gave such litigant some time to stay on, on the land.

The person who won the case at the District Court wanted to take writ out in the District Court. The lawyer told the litigant: “You have a de jure judgment in your favour but the other person has a de facto order in his favour. If you take writ out there is a possibility that you would be hauled up before the kangaroo court for contempt of court. You must decide what you should do.”

We are more or less in this unenviable position. Could it be said therefore that the Parliament has become the kangaroo court in this instance arrogating judicial powers to itself?

Forced legitimacy

It appears that law and its sanction is based today on force rather than consensus; forced legitimacy rather than consensual legitimacy. It is by conforming to the law that we could vest consensual legitimacy on the law. Lawyers are an integral part in this process. By refusing to give legitimacy and sanction to the orders and determinations of the Superior Courts the powers that be are undermining their power and effectiveness. That such derogation is instigated by Parliament speaks ill of our legislators.

I am glad that the legal profession has understood the seriousness of what is taking place and has geared itself to face the challenges. I thank your President and the members of the Bar Council for having given me this opportunity to be with all of you and show my solidarity with what you are doing.

Of course character assassinations through the press, threats and intimidations, if not sheer physical violence, might be thrown at you by interested parties. But remember you are on a worthwhile journey. The journey to bring respect and legitimacy to law and order in this country! The journey to oust force and coercion from the legal administration of courts! The journey to consolidate our profession.

Jayasuriya, you have an unenviable task ahead. The Bar has overwhelmingly thrown its support behind you. I trust you will be a worthwhile repository of that trust. Now, more than ever, is the time where party affiliations and personal differences have to be placed aside and the profession be given pride of place! I wish you well in the new year of office. God bless all of you! Thank you.