So… where is “the law”?

A bugle call for all likeminded ‘protectors’ of the Rule of Law

The price “good men” pay

After almost a year of silence since our last ‘Polisocionomic’ dialogue, where we discuss current matters of a socio-political/economic interest, the present occasion demands the “mighty pen” to take on the sword again; the reason for which can be summarised in these quotes that strike a known chord in the present situation:

Plato – “the price good men pay for indifference to public affairs is to be ruled by evil men”

Orwell – “in a time of universal deceit, telling the truth becomes a revolutionary act”

Thus we speak on this present interference with the judiciary, which began with the so called “unknown attack” on the Secretary of the JSC, followed now by a more “known” attack on the head of the Judiciary herself. We do so, not to hold a candle to anyone; indeed those of us who regularly appeared before Her Ladyship, as for instance in the 18th Amendment matter or the university entrance (compulsory training) matter would recall that, even with our unified and vociferous arguments we could not convince Their Lordships presided over by Her Ladyship to hold in our favour! Therefore this is not an attempt to protect “a person” but in defence of the institution that is represented – The Judiciary, to which we all belong, one way or another!

It is my fervent hope that my “learned friends” would be wise enough not to be split-up along shallow political colours, or even be blinded by timely offerings of elevated professional status, all of which are carefully manoeuvred political advancements to the theory of “divide and rule”; as in the sad case of several political parties who in their present divided state are but a poor excuse for an opposition. Let us hope that the Bar would not be equally susceptible to such moves but remain fearless, independent and together on this issue!

History repeats itself – the ‘last time’ around

It is only natural I suppose for memories to be re-kindled, to around June 2001; when I was just a raw junior at the Chambers of a senior PC, arguably the leading constitutional lawyer at the time; when the then opposition attempted a similar motion against the then CJ. That was an exciting time in Chambers; late night research into Erskine May and parliamentary procedure, “bigwigs” of the political arena in-and-out regularly, far reaching constitutional arguments as to separation of powers over parliamentary supremacy, etc.: and then came the day of hearing!

I still vividly recall being seated in that supreme court room 502 and being enthralled by one of the best deliveries I’ve had the privilege of witnessing; “Sir” was at his argumentative best in analysing the intricacies of how Sovereignty operated in our 2nd Republican (1978) Constitution; that equal organs of power (the Legislature, Judiciary and Executive) were placed on par, that therefore the Westminster concept of a “supreme parliament” (Prime Minister and Cabinet) could not operate in the same manner within our Executive Presidential system with all its trappings.

Another argument that was advanced (along the same lines) was that even if a committee were to appointed to look into the charges levelled, that must necessarily be made of judicial officers and not parliamentarians; as (it was argued) this was more within the realms of “people’s judicial power” and not “legislative”, in terms of our Constitution.

I must be also fair to admit that some members of the Bar were highly critical of this step (though it may have been more a reaction to the then CJ, rather than the law that was argued); more so as an immediate order ensued from the Supreme Court (on the 6th June if I recall correctly – the same day the motion was to be placed in the order paper), restraining him from appointing a select committee. Coincidentally Her Ladyship the incumbent CJ was on the bench of three judges of the Supreme Court that delivered this order (as reported on 17 June) as follows:

“... We have given our careful consideration to the submissions of counsel ... and pleadings filed ... Upon a consideration ... it would appear that the matter ... involved the purported exercise of judicial power by the legislature. This question in our view is of paramount importance which is fit and proper for review by the Supreme Court...”

However the Speaker was not so restrained, Parliament decided to proceed with their Standing Orders and place the matter in the Order Paper, but that is another story. The question for the present is will there be an equally erudite (and brave) enough Counsel to do take-up these same arguments this time around? How will the Bar react? How will Court react?

The doctrine of “Separation of Powers”

Following the 16th century Florentine Machiavelli identifying the significance of this “power” that allowed one to rule, later political scientists like the Frenchman Jean Bodin gave that power a name – “sovereignty”. Another Frenchman, baron Montesquieu propounded the theory that this Sovereignty must remain divided and separated between the three branches of government for maximum benefits to accrue to the people; that no sooner it was concentrated on one or more branches (the Legislature, Executive or Judiciary), that would create a dictator.

This contrasts with the view of Englishman and constitutional expert A.V. Dicey for instance, who looks at an ideal British (Westminster system) model and places parliament in a supreme position over the others; these are some of the first lessons taught to a student of politics even to date!

Analysing our (1978) Constitution in this light, clearly we are far departed from such supremacy of parliament. It is the People who give power to the Constitution, not the other way around; it is the sovereign power of the People of this Republic that comes first! This is very clear, both in the provisions of Articles 3 & 4(a) to (c), as indeed their interpretations by the Supreme Court, as in the matter of Senarath Vs Kumarathunge (SC FR 503/2005 at page 17) –  “the power remains and continues to be reposed in the People who are sovereign, and its exercise by that particular organ of government (Legislative, Executive or Judiciary) being its custodian for the time being, is for the People” (emphasis is mine).

What is furthermore apparent is that these “temporary institutions” that exercise these three-fold functions do so for and on our behalf - the People, as custodians. The preamble to the Constitution is very clear, that it is us the people that have enacted it – “The People of Sri Lanka … having by their mandate …empowered their representatives…do hereby adopt and enact this Constitution as the Supreme Law…”

The question then is, do we the people who have clearly separated and vested such powers in three separate and distinct organs in the hope of good governance wish for any one of them to interfere or intervene in another; thus attempting to be superior to another? Does the simplicity of holding a majority in parliament (due to short-term political reasons, such as popular leadership and weak opposition) justify such an encroachment by one on another? What message will this send out to other Judges who carry out their duties in an unbiased manner?

These are questions “my learned friends” will need to consider, and do it fast; if we are to organise ourselves to face this clear and present danger to the system that we have sworn to protect; which for my own recollection and for others equally inclined, I have set down below:

(To)…faithfully perform the duties and discharge the functions of (the profession), in accordance with the Constitution of the Republic and the Law, and be faithful to the Republic and to the best of (our) ability, uphold and defend the Constitution…

This is what we swore to uphold, for the Republic and its people!

This noble profession – how our leaders led us in the past

One usual Friday night around four years ago, at a place patronised by my vintage called R&B, suddenly turned the Bar up on its head with the news of a grenade attack on the residence of a colleague. For many of us who did it was immaterial, it was the act that was not to be condoned and struck a deep and sensitive chord at the very heart of the profession; and the Bar responded immediately with such force, surprising even us! An immediate meeting followed over tea and buns gathered by a few “concerned lawyers”.

This was to become a forceful unit gathering momentum by the hour. It was initially a few of us relative juniors led by others of around 10 years or more ahead in practice; but that’s how it started! Having begun, we would not rest until the Bar was united once again and rose up with equal vigour to meet this challenge put before the profession.  All we had to do was organise a few meetings of the top seniors and co-ordinate between their very busy diaries, but once we had our champions rising to the occasion, the collective venom of this crème-de-la crème of the profession was woe unto the aggressors; no one ever expected such a response from Hulftsdorp Hill, led by the very top silks of the profession! When the “Juniors” needed support, advice, encouragement and leadership to protect the profession, these leaders were there; they stood staunchly with us, spending their valuable time and under their able leadership we achieved what we set out to secure.

A high-powered committee was unanimously convened at the Bar Council, and the result was that historical Unanimous Resolution of October 2008! We were privileged to be part of such a unified battle of the Bar after 18 long years; the bar was united in their resolve, we were not on any political agenda but on a genuine call for the protection of what we had; our professional integrity!  We did it once, and I don’t see why it can’t be done again – the question is, are we still united to fight for our profession, the integrity and independence of the judiciary, OR have we also been “politically separated” to be written off as a “force that was”?

George Bernard Shaw: Some men see things as they are and say, “Why?” I dream of things that never were and say, “Why not?”

(The author is a practitioner in Sri Lanka. Having passed out as an Attorney in May 2000, he obtained a Master’s Degree in Laws (Hons) from King’s College, London and completed a pupillage of a Barrister in London. He also holds a Bachelor’s Degree (BA) in Pol. Science, Int. Relations & Journalism from the University of Colombo and a Postgraduate Diploma (Hons) in Int. Relations & Pol. Science from the BCIS. He is a life member of the Bar Association of Sri Lanka (BASL), member of the International Bar Association (IBA) & formerly of the Association of Sri Lankan Lawyers, UK (ASLLUK). He was awarded the ‘Outstanding Young Persons’ (TOYP) for legal accomplishment in 2008. He may be contacted on [email protected] for any clarification of his writings.)