30 March 2015 07:07 pm Views - 3983
The unity, independence and integrity of the Bar are essential not only for its survival, and for its meaningful contribution to society, but to also ensure that the critical institutions set up for and in the service of society are able to function without fear or favour. Constitutional and legislative provisions, though urgent and required to consolidate the independence and impartiality of institutions may have no meaning in the ultimate unless we have a strong Bar and an ever vigilant and vibrant democracy, a democracy watchful against abuses and perversions of the law. All too often we have seen the best of laws being ignored or abused at the whims of those in authority.
As members of the legal profession, as professionals exclusively endowed with the practice of the law, we have a duty to exercise our privileges in a manner which is manifestly beneficial to society and to uplift the civil, economic and political rights of all our citizens. As members of the Bar, holding this pre-eminent position in society, I have no doubt that all of us endeavor to do this when discharging our respective professional roles.
However, my interactions with the members of the profession, both young and old, covering all parts of our country, make it abundantly clear that there is a need to re affirm this commitment and ensure that the work we do has meaning and value for society and creates that multiplier effect to contribute to the development of our land and further empower the pre-eminent position the legal profession enjoyed over the years. For this we have to support each other and work together.
Our political history would have more than convinced us that democracy is too precious to be entirely left in the hands of politicians of whatever calling or colour. Yes, sadly we have seen that power corrupts and so does absolute power.
“It is not the function of our Government to keep the citizen from falling into error. It is the function of the citizen to keep the Government from falling into error,” US Judge Robert H. Jackson in the American Communications Association vs. Doud, May 1950 We have seen many instances of persons we believed were messiahs or saviours of our nation meteorically ascend to power and over time descend to the basest. They fail the test of Statesmanship or integrity.
“All men can stand adversity, but if you want to test a man’s character, give him power,” Abraham Lincoln.
Our contribution to society has to be positive and continuing. We believe the voice of the Bar has to be loud and clear. It has to be responsible and truly professional. It cannot be partisan or politically biased. It cannot be motivated by the agenda or self seeking interests of its individual members. We are mindful that any benefits we or the judges get for ourselves personally by way of promotions, positions and perks, do not come from the private funds of the politicians but from the funds of the people or the State. We have to therefore earn them by merit and give back to the people or State in full measure for what we get.
In this journey we need the support of not only the body of civil society but the support of responsible professional and civil society organization representatives. After all aren’t we all on a common journey to continuously press for a decent and civilised existence for our country and generations to come? Is it not the responsibility of all of us to ensure it? Democracy requires the participation of all of us. It is not merely a matter for periodic elections held at irregular intervals or at the behest of astrologers when we are energized and then slumber till the next election is on.
As members of the Bar, the institution foremost to us is the Judiciary. Though sometimes considered a remnant of a colonial past and seemingly anachronistic or out of place in an Eastern culture because of the attire and accompanying formalities, yet, within this institution is the future of democracy which has to hold the scale of justice evenly between citizen and citizen and more so between citizen and the State. An independent and strong Bar is therefore crucial for ensuring this and for protection of the judiciary. The Bar has been firm against the might of the State when it came to appointments, promotions, perquisites or impeachments related to the judiciary. We see Judges as one with us forming one legal fraternity. Our desire is and should be to work closely and harmoniously with the Judiciary while respecting each other’s complementary roles in the service of the legal system. The protection of the judiciary is one of our foremost duties since the judiciary cannot be expected to have a public voice.
The Bar has constantly raised its concerns for ensuring transparent and rational mechanisms towards the protection of all judges, irrespective of rank.
The minor judiciary straddles various parts of our island. It is they that handle the flesh and blood of the law on a day to day basis enduring much hardship and inconvenience.
They need to be fortified in the belief that their tenure will not be subjected to uncertainty. Reasonable mechanisms need to be put in place to ensure transparency and fairness in procedures related to the Judiciary rather than leave it to chance. We at the Bar are also concerned at the overlooking of judges for promotions by considerations other than seniority and merit. With no intention of derogating from the ability of any person, we also believe that the Superior Courts will be richer through a healthy balance or mix of persons from Career Judges, the Official and Unofficial Bar with perhaps a slight tilt in numbers towards the career judges.
Whilst the good intention of the present government is not doubted, it is of concern when sitting Judges especially of the Supreme Court are appointed to tribunals or commissions inquiring into matters domestic or internal to our country. It is no doubt refreshing to realize that the Executive looks to the Judiciary for an impartial competent inquiry.
Yet, considering the work load of especially the Supreme Court which is bursting at its seams today and the need to keep judges free from allegations of political or other biases in the interests not only of the judiciary but of the individual judges; it is best that a mechanism which does not involve sitting judges, especially of the higher courts, be put into place. The law that provides for Commissions of Inquiry being over thirty seven years old, needs revisiting in today’s context.
Judges are and should be perceived as Priests discharging a sacred duty. If they are perceived as less independent or as compromising values on which their priestly duties rest by seeking favours and undue benefits from the Executive we too have to take the blame and lets guard against such an eventuality as in the words of American Bar Association President William Gosett, “If respect for the Courts and for the judicial process is gone or steadily weakened no law can save us as a society.”
We believe in constant dialogue and engaging with the authorities to nudge and remind them that the delivering on the essentials of democracy is a sacred duty reposed in them as holders of Public Office in trust for the people. Under our Constitution we have no doubt that Sovereignty is with the people and not the Rulers.
On a personal note I pay special tribute to a great judge, Justice Mark Fernando, who was denied his rightful place in the Supreme Court. This perhaps led to some of the most sordid events in the history of our land and the judiciary. They may be best forgotten though perhaps best remembered as a grim reminder of what should not be. I also remember Deshamanya R.K.W Goonesekara, whose wife my revered teacher is our guest of honour tonight, and Mr. Elanga Wikramanayake who strove for justice in the midst of all odds irrespective of colour, creed or political affiliations of his client or opponent. It is with fondness that I remember Desmond Fernando, PC who taught me that you could take principled stands against your own friend’s wrong action without personal animosity while continuing to be friends.
Pic by Samantha Perera