By Chrishmal Warnasuriya
BA (Colombo), P Dip. (Hons), LLM (Hons) (London)
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 18 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, “big-wigs” 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 analyzing the intricacies of how Sovereignty operated in our 2nd Republican (1978) Constitution; that equal organs of power (the Legislature, Judiciary & Executive) were placed on par, that therefore the Westminster concept of a “supreme parliament” (Prime Minister & 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 June 06 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 3 judges of the Supreme Court that delivered this order (as reported on June 17) 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?
This noble profession– HOW our leaders LED US in the past:
One usual Friday night around 4 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.
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?”