17 December 2012

BASL Resolutions and implications

The Bar Association of Sri Lanka (BASL) adopted three resolutions yesterday relating to the impeachment of the Chief Justice.  In essence, the BASL requests that the President re-consider the impeachment, called for ‘the enactment of procedural laws in relation to the removal of judges of the Superior Courts while ensuring a fair trial by adhering to principles of natural justice’ before proceeding if the first request is turned down, and if the CJ is removed without such enactment and fair-trial guarantees to ‘not welcome’ the CJ’s successor. 

The second and third resolutions clearly assume that the first (request) would be turned down.  The BASL implies in the second resolution that there is a constitutional flaw.  Calling for law-change in mid-process could open a legal and constitutional (if not ethical) can of worms.  Constitutions are not cast in stone, which is why there are provisions for amendment.  What stands has stood, for better or worse, for close to three decades without a murmur of concern being raised by the BASL or anyone else.  This raises the question, ‘Was the BASL ignorant of relevant articles in the Constitution all this time?’ There was politics then and there is politics now, this much is clear.  If the rules can’t keep politics out, then they need to be changed.  Not in the mid-process, not least of all for the bad precedent it sets.  

The allusion to ‘natural justice’ is interesting.  Many BASL movers and shakers are also vociferous supporters of a query currently in the Supreme Court regarding the constitutionality of the impeachment process, essentially asking the CJ to offer determination on a case whose outcome may be detrimental to her interests.  That ‘violation of natural justice’ has not warranted BASL comment.  Neither has the BASL thought fit to observe that if current strictures are inadequate, illegal or violate principles of natural justice it follows that a CJ is unimpeachable, a sorry state of affair which rebels against the fundamental principal of equality before the law.  

The third resolution is a threat, unadulterated.  It appears that the BASL, the governing body of lawyers, has erred on at least 3 counts here.

Firstly, Sec 41 (1) of the Judicature Act gives an Attorney-at-Law an unimpaired and unhindered right to appear before any court or tribunal set up for the administration of justice. Resolution 3 takes away this statutory right.  Secondly, If the CJ is impeached it would have been done both constitutionally and legally (never mind the morality of intent) and therefore the BASL has to recognize it.  Thirdly there is a Constitutional requirement for the President to appoint a new CJ and a new CJ would be appointed constitutionally and legally; therefore there is no ground for the BASL to not recognize a new CJ and to prevent lawyers from appearing before him/her.

Now the wording can be interpreted to mean that what the BASL meant was not to welcome her officially, but lawyers are lawyers and interpretation as per convenience is their bread and butter.  One cannot but note that when Dr. Bandaranayake was appointed, she did not have an official function to ‘present herself before the legal professionals’, perhaps fearing a snub of the kind threatened by this resolution.   

Quite apart from all this, we have a situation where the BASL appears not to know the meaning of ‘unanimous’.  The Vice President of the BASL in fact resigned after objecting to the entire process which she claims was undemocratic. Worse, Dr. Bandaranayake’s lawyers, Neelakanthan and Neelakanthan, operating almost like a Public Relations firm as opposed to a company of lawyers, issues a statement ‘on behalf of client’ to tell the public that Dr. Bandaranayake is grateful that the BASL ‘was unanimous’ in supporting her.  A lot of ‘interpretation’ there of course, but more than that a clear indication that client and/or legal representative have no clue about the meaning of the word ‘unanimous’. 

The BASL has every right to engage in politics.  Responsibility and dignity cannot be demanded but only observed in word and deed and indeed breach of the same.  The BASL was political when its members, with or without the blessings of the body, turned the Supreme Court into a kattadiya’s carnival, and unknowingly or unknowingly gravely compromised the dignity of the post of Chief Justice by taking the politicization of the impeachment to a higher level.  How their high minded notions of ‘natural justice’ and ‘impartiality’ are served by appearing before a judge who they cheered and whose ‘nod’ they received, they have the intelligence to deduce.  The CJ is grateful to the lawyers, by admission.  Will ‘gratitude’ not play in deliberations, one can ask.  The person and the post both appear compromised and the BASL can no longer claim innocence in the outcome.   

It is easy to take refuge in the notion that if everything is out of order it’s perfectly alright to be out of order ourselves.  BASL moves, despite all this, appears to be symptomatic of constitutional flaw no less pronounced than other articulations of the same errors.  It calls not for constitutional tweaking, but comprehensive constitution-review with a view to develop a fresh document, a 3rd Republican Constitution.


Anonymous said...

What the majority of lawyers are asking for is a fair inquiry for the Chief Justice. It's not about Dr Shirani Banadaranayake. It's about the manner in which the head of the judiciary is being removed. What is the message that we send to other judges and also to the public, if the process is allowed to continue in this way. We had a strategy/methodology to win the war, but that cannot be applied to get rid of every obstacle that the government finds on its way.

At the end of the day, it's just a matter of amending a Standing Order. And Standing Orders are not law.

Politics is everywhere. Why do we try to explore the horoscope of those who raise an issue? Let's answer the issue.

Everyone has political views and agendas, including lawyers and editors of newspapers, but the judiciary was/is/will be the last resort of each one of them, including you (SC FR Application No. 146/92) and I.

Let's protect this institution for our own sake, and let those who interested to do their politics..

Malinda Seneviratne said...

Looking back, it seems that the BASL was not as 'righteous' as people thought it was.