Sri Lanka’s Hypocritical Bar

Last week a petition signed by some 153 members of the Bar Association of Sri Lanka (BASL) pushed for the BASL to stop a government motion from appointing a Parliamentary Select Committee to probe the conduct of Sarath N. Silva during his tenure as Chief Justice.

The lawyers who signed the petition asked for the President of the BASL Shibly Aziz to “vehemently protest and deplore” the appointment of a PSC.
Out of the controversy involving Chief Justice Sarath Nanda Silva has emerged a single fact that is the most damning for all Sri Lankans. A large percentage of the people have lost confidence in Sri Lanka’s justice system and judiciary, but they also no longer have much faith in lawyers.

The allegations surrounding the former CJ, without proper closure beginning from the time he was an Appeal Court judge has largely contributed to this perception and the Bar Association of Sri Lanka (BASL) has contributed in no small measure to this.

Losing faith

As a result, many people in Sri Lanka are saying that it is quite simply a country without justice. It may be unreasonable to attribute this entire condition to the former Chief Justice, but it is reasonable to say that he has contributed to this situation greatly.
But that is not the issue this week.  What is appalling is that lawyers who or whose colleagues alleged intimidation by the then CJ, Sarath N. Silva, who they even whispered had threatened to debar some of them, are today clamouring against an investigation being held into his conduct.
Has Sri Lanka’s Bar suffered temporary amnesia? Are these the same lawyers who during Sarath N. Silva’s tenure alleged that he manipulated panels and dates of hearings in a manner that casts doubt on the objectivity of proceedings?
In a lengthy book titled The Unfinished Struggle For The Independence Of The Judiciary (2002), prominent journalist Victor Ivan alleged extensive misconduct and abuse of authority by Sarath N. Silva both as Attorney General and Chief Justice. There was never an official denial of the allegations made in this book, nor has the author been subjected to any legal action, despite inviting it.
In fact, most of the material in the book was previously published in newspapers and is widely known to the public in Sri Lanka.
Regrettably, nothing has been done so far to correct this injustice. To top it all we have now in place top lawyers, members of the BASL incapable of action without fear or favour as far as the former Chief Justice is concerned. The BASL today lacks the courage to take up the cause of the case involving the CJ.
I recall writing in 2004 how the then President of the BASL, Ikram Mohamed PC., could not act independently of the Chief Justice having been retained as counsel for Damayanthi Jayasekera when her husband filed divorce proceedings against her for living in adultery with the CJ.
Mohamed by his own admission said he was retained by Anoma Gunetilleke, who also acted as counsel for Damayanthi. Anoma Gunetileke at the time held a key post in the BASL as its Secretary. This situation of wheels within wheels does not stop at that. The then Deputy President, of the BASL was Hemantha Warnakulasuriya.

Yelling abuse

An interesting story revolves around Warnakulasuriya. We leave it to our readers to reach their own conclusions. In November 1999, a senior lady lawyer called Swinitha Indrani Gunaratne in an affidavit to CJ Sarath N. Silva made a strong complaint against Hemantha Warnakulasuriya. She said that on November 10, 1999, inside the lawyer’s chambers within the vicinity of the Chief Magistrate’s Court at Hulftsdorp, Warnakulasuriya verbally abused her using foul words in Sinhala.
She says the incident took place while she had been seated inside the lawyer’s chambers. According to her affidavit, Warnakulasuriya had suddenly walked in and yelled abuse at her using insulting and slang words. The scene according to her apparently was instigated as a result of a resolution passed at a central committee meeting of SLFP lawyers. A resolution which had been proposed by Ananda Goonatilleke, attorney-at-law and which she had seconded. Warnakulasuriya for some reason, she stated was furious and this resulted in the subsequent ugly scene in the presence of other lawyers too, whom she named in her affidavit.

From critic to supporter

The CJ, (at the time Sarath N. Silva) ordered an inquiry to be conducted by the disciplinary committee of the BASL. The inquiry however never got off the ground. After Gunaratne repeatedly made inquiries as to the status of this committee she says she was summoned to the CJ’s chambers on May 2, 2002. When she arrived, Justice Shirani Bandaranayake was also present and the CJ had proceeded to inform Gunaratne that she should give some kind of an undertaking to Warnakulasuriya and settle the matter amicably. Gunaratne had strongly objected reiterating she had been too greatly insulted by Warnakulasuriya and that she wished in all justice and fairness for a disciplinary inquiry to be carried out by the BASL.
Silva, however, had remained adamant and Gunaratne left chambers on that note. An eye witness who wished to remain anonymous told The Sunday Leader that the injustice of this encounter between Swinitha Gunaratne and the former CJ was amply displayed when Gunaratne walked out of his chambers and came face to face with Hemantha Warnakulasuriya who had also been summoned by him and according to eyewitnesses was apparently eavesdropping on the conversation between Gunaratne and Sarath Silva.

Case closed

The whole matter came to an end when the then Registrar, Supreme Court, Bandula K. Atapattu on July 16, 2002 wrote to Gunaratne stating that he had been directed by Silva to inform her that the material she had submitted for an inquiry “does not warrant issuing a rule under section 42 (2) of the Judicature Act since the incident does not disclose malpractice or professional misconduct.” He further stated “I am directed to inform you that this court is not inclined to issue a rule in terms of either Rule 60 or 61 of the Supreme Court (that deals with conduct for and etiquette for attorneys-at-law) Rules 1988, as the incident has taken place outside court.”
Gunaratne vehemently objected  in writing to the Registrar and pointed out that the lawyers’ chambers where the incident took place is situated within the Chief Magistrate’s Court premises and is a place adjacent to six court houses where magistrates sit and perform judicial functions.
She further drew attention to the fact that the crux of her complaint related to the conduct unworthy of an attorney-at-law, while the place of occurrence was not what she strove to emphasise. As such, she made the point that the incident did amount to professional misconduct.
In reply to this letter, the Registrar once more wrote on September 12, 2002 where he merely repeated the position of Sarath N. Silva saying, “the Hon. Chief Justice wants to inform you that there is no basis to change the decision communicated to you by letter dated 16.7.2002, and that this matter is now closed.” And that was the end of that!

In stark contrast

Compare this if you will with the disciplinary inquiry and four year suspension given to another lawyer on a complaint made by Ikram Mohamed – also in 2004.
A key factor however figures. It is alleged that up until this case, Hemantha Warnakulasuriya had been a vociferous and strong critic of Chief Justice Sarath N. Silva. He not only wrote lengthy and detailed reports against the sitting CJ, but backed his reports with evidence against the alleged misdeeds and mistrials of the CJ. He also publicly demonstrated against the then CJ, repeatedly stressing that Sarath N. Silva was not fit to hold judicial office.
But when this incident took place, and by the time Swinitha Gunaratne was summoned by the CJ and all charges against Warnakulasuriya dropped, Warnakulasuriya became a CJ loyalist. To this day, he does not utter a critical word against the CJ, so much so, that at one function Sarath N. Silva was heard to quip words to the effect, “to have Hemantha on your side is a great plus, but if he is on the other side he makes a terrible enemy.”
At the time when we asked Warnakulasuriya if charges against him on this occasion were dropped because he made a deal with the CJ, he said, “I was a vociferous critic of the Chief Justice but these charges were not dropped because of that. I had absolutely no dealings with the CJ or anybody else with regard to this case.  I made some observations with regard to this case. The reasons for not taking action were sent to Swinitha Gunaratne. Ask her.”
Speaking to Warnakulasuriya again last Friday December 2, I asked him if he had signed this last petition to which he replied he had not. Pushed for a reason he responded saying, “I have told them I will intercede with H.E. (The President) regarding the appointment of a PSC.”
So there you have it! In a nutshell, The Sunday Leader can only reaffirm our previous story published in 2004.

Abuse of power

Asked why he suddenly changed his critical stance of the CJ, Warnakulasuriya responded, “I was critical of the CJ at the time he was the Attorney General. Then I found all those people who were with me when he became Chief Justice went and settled their differences with him and congratulated him on his appointment.”
Quizzed as to whether he too “settled his differences with the CJ” Warnakulasuriya said, “I did not. I still maintain that what he did with regard to an order he gave as AG in the case involving Mahanama Tillekeratne was wrong. After he became CJ there was no other reason for me to continue criticising him because the Mahanama Tillekeratne matter by that time was settled in the Court of Appeal. I do not have any agendas here. Therefore there was no reason for me to continue criticising the CJ.”
There is a common feeling that it is futile to challenge the abuse of power by a Chief Justice, former or otherwise.
The 2001 report of the International Bar Association titled Sri Lanka: Failing To Protect The Rule Of Law And The Independence Of The Judiciary, noted that any proceedings or inquiries concerning the position of the Chief Justice when Attorney-General, and in connection with his appointment as Chief Justice, should be resolved by decision or appropriate judicial action and not left in abeyance. Further, any continuation of the present or future impeachment proceedings of the Chief Justice should be dealt with rapidly and with due process of law.
Sadly, the attempt to impeach Sarath Nanda Silva was derailed by political manoeuvering, despite the initial motion succeeding, with one-third of parliament signing in favour.
In 2003, Nuwara Eliya District Judge Prabath de Silva resigned in protest against the Chief Justice. He did so saying that it was impossible for him to continue his work effectively under Sarath Silva. Justice de Silva cited the case of Michael Anthony Fernando as evidence of how if he were to present a fundamental rights case to the Supreme Court it would not yield any good result.

Protecting rights

Michael Anthony Fernando was imprisoned for one year by the then Chief Justice Sarath N. Silva and two other judges. In prison he was mercilessly beaten by prison guards. Silva as the CJ sat on the Bench to hear Fernando’s case despite him having been named as a respondent.
The questions people are asking is this: What can the people do when the judiciary itself is accused of arbitrary abuses of human rights and when it acts in violation of a citizen’s fundamental rights? What can they do when the judiciary is alleged to have abused its power to imprison and intimidate persons arbitrarily and when it bullies those who come seeking justice?
These are the questions those 153 lawyers of the BASL who signed the petition should be asking.
Do they not care about human rights? Do they not care that judicial support is critical if the fight against violations of human rights by the executive is to succeed? When confidence in the judiciary is undermined, it signals a crisis.  What, for goodness sakes are they thinking?
Those who signed this petition will argue they did so in principle against the Executive from interfering with the Judiciary.  The moot point is this. What action has the Bar Association  ever taken against the abuses alleged to have been committed by Sarath N. Silva? Where does one go for justice or for an inquiry to be initiated? To Sri Lanka’s defunct Commission on Bribery and Corruption? To the Judicial Services Commission?

Way out

Whatever steps are taken, the ultimate objective is to open space for people to play a more active role in resolving the crisis facing the judiciary in Sri Lanka. Both Sri Lankan lawyers and the public are demoralised and paralysed. They need a way out of this situation.  And it is NOT by signing a petition to block an inquiry into one of the most corrupt judicial officers this country has suffered.
As correctly pointed out by international organisations including Asian Human Rights Watch, it is above all, a duty of the lawyers to rise above their petty interests and fears. Their relevance to Sri Lankan society is now very much being questioned. Without a strong move by the lawyers to stand on the best traditions of their profession, the situation for civil liberties in the country looks very bleak indeed. Right now, as never before is a situation which indeed is a wake-up call for all Sri Lankan lawyers  – to be able to stand tall without fear or favour for what is just and right for this country.