The Bar has been vindicated -Upul Jayasuriya

30 January 2015 05:48 pm Views - 2343

Address by Mr. Upul Jayasuriya, president of the bar association of Sri Lanka (BASL), at the ceremonial sitting of the supreme court to bid farewell to chief justice, Dr. Shirani Bandaranayake

It is common knowledge that, the unwavering stand of the Bar was that, the purported removal of Your Ladyship was unconstitutional, unlawful, null and void and of no force or effect in Law and that, any purported appointment done placing reliance on Your Ladyship’s purported removal, was also necessarily, unconstitutional, unlawful, null and void and of no force or effect in Law. The Bar has always urged the Government to take the necessary corrective action and we are relieved and happy that, at long last, justice has prevailed and the illegality has been rectified, with Your Ladyship resuming your rightful and lawful position as Chief Justice.
 

"During this journey and the struggles both the Bench and the Bar were forced to make sacrifices. Among them the late Justice Sri Skandarajah’s name has to be inscribed in golden lettering, remembered and revered. The Executive wrath had no bounds or confines on him"

The Bar always fought for this day and the Bar has been vindicated. Your Ladyship has endured this extremely difficult period with immense courage and unfailing dignity and all Your Ladyship’s actions and words during this period, despite immense pressure being brought to bear on Your Ladyship, have kept in mind the paramount need to protect the dignity of the Judiciary. We respectfully commend Your Ladyship for your fortitude and your wisdom. It should also be noted that, during this interim period, the Bar has, in the interests of litigants and the continued functioning of the system of Administration of Justice, rendered the necessary cooperation to this Court and we look forward to continued cooperation and good relations between the Bench and the Bar, without which neither the Bench nor the Bar can function. It is a magnanimous decision of Your Ladyship that would raise the eyebrows and anxiety of many.

The decision of Your Ladyship to retire with immediate effect is a magnanimous one that would raise the eyebrows and cause anxiety to many. Since Your Ladyship has many more years to serve this Court and our Country as Chief Justice, we can only assume that Your Ladyship has taken this decision because, perhaps, in these last two years, Your Ladyship has found much contentment, peace of mind and happiness in life outside Hulftsdorp and that you wish to continue to enjoy such a chosen journey, which is truly of the highest value and which would outshine any of the more mundane and temporary trappings of power or prestige.

 

"We respectfully commend Your Ladyship for your fortitude and your wisdom. It should also be noted that, during this interim period, the Bar has, in the interests of litigants and the continued functioning of the system of Administration of Justice"

 

We respect Your Ladyships’ decision and wish you good health and success in the future.

Two years ago your ladyship was restrained by arbitrary action. The entire legal profession stood by you. Every day of your life that you were kept away and restrained from discharging your functions of your office as Chief Justice the Bar stood by you. Two years ago over 3000 members, the largest ever gathering of our fraternity, met and resolved to take up your cause with determination. This gathering was presided by my predecessor, Mr. Wijeyadasa Rajapakshe, PC on a Resolution that was moved by me. Years passed by, we did not change our stance. Customarily you were invited as the Chief Justice to grace my Convocation in 2013, even after you were restrained in the discharge of your functions as the Chief Justice. Since that day there were many a battle that we fought for on principle and not for an individual or a personality. During this journey and the struggles both the Bench and the Bar were forced to make sacrifices. Among them the late Justice Sri Skandarajah’s name has to be inscribed in golden lettering, remembered and revered. The Executive wrath had no bounds or confines on him. He was called to pay the supreme sacrifice for what he thought was right. Let no Judge in the future be faced with the torture and agony that he went through for his forthrightness. That’s not all, Justice Anil Gunaratne had to face the same egocentric arrogance of the Executive. He was overlooked thrice for the same sin of having quashed the Select Committee findings. I too was called upon to pay the price. I thought to myself that “only when we are no longer afraid do that we begin to live.” Permit me to quote Nelson Mandela on this, “I learnt that the courage is not the absence of fear, but the triumph over it. The brave man is not he who does not feel afraid, but he who conquers that fear.” It has been the continued assertion of the Bar that Your Ladyship fearlessly continued in office as the de jure Chief Justice. The hopes of the Bar and the aspirations have been realized today. My Lady, permit me to convey to you the greetings from the International Bar Association, Law Asia and the Commonwealth Association of Lawyers, Judges and Educationists on your admirable patience and the gracious manner in which you conducted yourself during the most difficult two years of your life.

 

"Tragically the 18th Amendment reversed this trend. Your Ladyship too will have to share the responsibility for the introduction of the 18th Amendment with no referendum by the people. The Executive usurped the powers of the Constitutional Council to make these appointments once again frustrating the long established traditions of the legal profession, judicial system and the hopes of a Nation"

 On this momentous occasion, it is my duty to convey the appreciation of the Bar to the Executive and the Government headed by the Prime Minister for the courage displayed in rectifying a grave error and the miscarriage of Justice committed two years ago. I also take this opportunity to place our appreciation to a large group of very senior Presidents Counsels, Mr. Faiz Musthapha, PC; Mr. K. Kanag Iswaran, PC; Mr. N. R. M. Daluwatte, PC; Mr. Romesh de Silva, PC; Mr. Shibly Aziz, PC; Mr. Ikram Mohamed, PC; Mr. Upali Gooneratna, PC; Mr. Rienzie Arasakularatne, PC; Dr. Sunil Cooray; Mr. Geoffrey Alagaratnam, PC and Mr. Prasanna Jayawardena, PC who advised the BASL and the Government to take this course of action that has made our dream come true. Permit me to take this opportunity to thank every member of the Executive Committee for their un-stinted support that was extended unanimously for us to steer through troubled waters. The members of the Bar Council too stood behind me in support of what we achieved. It is my incumbent duty to assert that in our 40 year history, the Bar has always stood firm in matters of principle and not by people or individuals. We have had no inhibitions. I recall the day when judges’ houses were pelted with stones. I too was in the Bar Council when we resolved to condemn such actions inspired by the then all powerful Executive.

I also recall the day when your Ladyship was first appointed as a Judge of the Supreme Court. That was 18 years ago. The Bar decided to fight it with all vigour and filed four applications against your appointment. The late Mr. R. K. W. Goonesekera led the group of lawyers. I too appeared in one of those applications as a Junior. When Attorneys-at-Law, Wijedasa Liyanarchchi and Kanchana Abeypala, were assassinated we stood up and condemned it. When Lawyers were hounded out by an oppressive Government we stood by the victims and fought against such aggression. When thousands of youth were incarcerated in 1989 we considered it our duty to take up such a cause. When the fury and the rage of the Executive was focused on the Judiciary in the recent past, we took up the cause of the oppressed and carried the flag ahead and declared war against those responsible. It is we who placed the issue of Rule of Law before the Peoples’Court. We never rested until sanity was restored. Today we are able to look back with pride when Democracy is being restored. We marched for the independence of the Judiciary. It is a triumph of the values that we stood for. If we lose our struggle for Judicial Independence and professional integrity; if we cannot defend our right to practice our profession with dignity whilst ensuring the safety of the Judiciary on the basis of the highest principles on which the legal profession is founded, then every one of us including those of whom we represent in our pursuit for Justice, will be at risk. These values are precious and priceless. The 17th Amendment to the Constitution of Sri Lanka put our country in that right direction. In a rare unanimous vote Parliament set the record straight and appointed a Constitutional Council to select and recommend appointments to the Executive to fill the vacancies to the Apex Courts. Tragically the 18th Amendment reversed this trend. Your Ladyship too will have to share the responsibility for the introduction of the 18th Amendment with no referendum by the people. The Executive usurped the powers of the Constitutional Council to make these appointments once again frustrating the long established traditions of the legal profession, judicial system and the hopes of a Nation. The Executive persisted and sought to act in breach of these salutary principles, and perverted the course of Justice with invidious pressures on the Judicial Independence. Be it the Career Judiciary, be it the Attorney General’s Department, be it the Private Bar, if merit, seniority and eminence is to be ignored at the alter of political patronage in making appointments to the Apex Court we might as well bid farewell to the independence of the Judiciary, the Rule of Law, the law books and judicial precedents. This was the basis on which some appointments were made to the Apex Court since the 18th Amendment. The Bar Association of Sri Lanka is proud to announce that our proposal to the Government to appoint an independent panel consisting of the His Lordship The Chief Justice, the President of the Court of Appeal, the Attorney General and the President of the Bar Association of Sri Lanka to recommend the possible appointees to the Apex Court has been accepted by the Government. The same proposal was made to the Executive nearly 4 months ago to which we did not even receive a response. We would also propose that any form of canvassing by those who seek such appointments should be made a disqualification. The people in Sri Lanka believe that a well-informed public, the Rule of Law and a vibrant Judiciary to be the core of our democracy and the back bone of a nation. Our forefathers fought the colonial rulers and won the democratic rights for our people. All the democratic institutions that we cherished have collapsed around us. We have to build them afresh. It is our call today. I can justifiably be proud that at least we have saved the Judiciary from this autocracy and begun a new journey seeking light at the end of the tunnel. After a long journey of hatred, revulsion, abhorrence and turbulence we have now reached a phase of tranquillity, serenity and harmony. We have reached the distant dawn. The people have afforded this new lease of life. They have paid for it. And we owe it to them. My lords, it is now your turn. We need to gather strength, stamina and activism with sincerity. Be there no colour, strings or self imposed pressures for greener pastures. Permit me to quote from the prophetic words of Edmund Burke: “Danger of People crushed by law, have no hope for what is right but for might. If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose, will always be dangerous” The citizen’s respect for law, esteem and admiration for the courts and for the judges who preside over them is the very essence of the Independence of the Judiciary. Confidence in these institutions and in the men who administer them is “sine quo non”, if this respect is to be maintained. This essential co-relationship between “public respect” and the “Rule of Law” needs to be recognized to maintain the dignity and respect of Courts. . Permit me to quote Caroline Kennedy, from what she observed: “The bedrock of our Democracy is the Rule of Law and that means we have to have an Independent Judiciary, Judges who can make decisions independent of the political winds that are blowing.” We have conquered. We have survived. It is now our turn to nurture and safeguard it from the evil forces that may infiltrate the process that is sought to be preserved. This will be the last time I bow to your Ladyship, the 43rd Chief Justice. The first ever Lady Chief Justice of Sri Lanka.