Sarath Ambepitiya-The Murder Of A Judge

By
Tirantha
Walaliyadde                          
President’s Counsel

This article is in response to some queries that came after an interview with The Sunday Leader on 25th September 2011, where this matter was referred to as well as to a comment by  Mr. Wijedasa Rajapaksa regarding his representing Potta Naufer.

“Thou art the ruins of the noblest man that ever lived the tide of times. Woe to the hand that shed this costly blood”.
Shakespeare’s Julius Caesar
It is tragedy compounded if the death of such a man is perpetuated not for the man and his virtues or for the dreadful circumstances of his death but for an ill conceived controversy on the ethicality of representation by Counsel of the person accused of the murder and, worse still, the amount of the retainer. It seems that the morality of some individuals is directed more towards curiosity about the price of death than the value of life.
It goes this way: “Now let us see what Wijedasa Rajapakse says about his opponent Tirantha Walaliyadde. He says,  “The Bar Association of Sri Lanka(BASL) passed a resolution not to appear for the accused in the late Ambepitiya’s murder case. It was a unanimous decision. Despite that he appeared for Potta Naufer” (The Sunday Leader of December 18 2011.) This is what Wijedasa Rajapakse firmly told The Sunday Leader in an interview.
This is what is called being caught at first slip. When contacted by me the Bar Association categorically denied that any such resolution was taken either by the Bar Council or by its Executive Committee.
In fact a Resolution was adopted by the Executive Committee on the December 2, 2004 stating specifically that the Bar Association had not influenced or persuaded any lawyer to refrain from appearing for the defence.
During election campaigns, these statements that mislead the voting membership on issues such as these may amount to a corrupt practice and disqualify the candidate.
The Bar Association is the premier legal body of lawyers in the country and if a candidate running for the Presidency indulges in hurling fictitious sticks and stones at his opponent at the run up to the election, it implies disorder and panic in that camp and uncertainty as to its own standing at the election. This maybe the manner in which General Elections are contested, making ill conceived and untruthful allegations against an opponent and thereby prejudicing the public just for that short period of time which runs up to the elections. But candidates must bear in mind that this is not the General Elections but the Bar Association elections and as such should not be conducted in a manner which cracks the foundations of its own integrity.
The Bar Association is one of the most powerful organisations in the country and to have political chameleons aspiring to lead it bodes ill for its future in the context of current affairs and political trends moving within the country.  And, that any person has the audacity to contest from parliament and insist that he will be politically neutral and expects the membership to accept it as such insults the intellect of the membership – at least it insults mine.
Furthermore, one would not expect an individual who rails away at being committed to safeguarding the independence of the judiciary to absent himself from one of the most historic of Bar Council meetings, convened on December 17, 2011, at which Parliament’s attempted encroachment on the independence of the judiciary was unanimously disapproved of and Parliament was called upon by the Bar Council to refrain from such activity. The original Resolution was initiated and proposed by me and seconded by Nimal Weerakkody.
Wijedasa Rajapakse was absent.
This is the proof that one cannot serve two masters at the same time and that the choice of masters has already been made.
I am placing these matters in black and white now for the attention of the membership as well as the public. I do not appreciate being the subject of rank publicity based on mischievous and untruthful allegations.
To my mind, which is not experienced in politics of any kind, there are two types of campaigns at an election: the back patting, I’m a jolly good fellow type of campaign, and, what I call a campaign of aggression, where the candidate sets forth to achieve his objectives in a positive and compulsive manner which leaves no room for doubt as to his direction nor his ability to achieve them, and demands of the voting membership to vote for the Bar Association, and for the future of the membership, The Bar Association has no time now for half measures and tail wagging: aggression to my mind is the need of the day.

Every person accused of a crime is presumed innocent until proven guilty at a fair trial by a competent court in terms of the Constitution as well as international law. So also, every such person is entitled to representation by Counsel of his choice and Counsel are under a Constitutional duty to represent such person. Alleged killers of presidents and prime ministers, mass murderers, gang rapists, child molesters, and terrorists have been represented by counsel at trials all over the world. So also, when a person is accused of the murder of a judge, he is entitled to representation. I doubt if anyone charged with the murder of a judge would refuse representation by Counsel purely on that basis. I state firmly that it would be unethical for the Bar to refuse to represent an accused on the basis of the status of the victim of the alleged crime, and, that if it does so refuse, that day would go down in history as the day of ignominy for the Bar Association of Sri Lanka and would place an indelible stain on its reputation as an independent and courageous body of professionals which would move forward against all adversity in the search for justice.
Readers, lawyers and laymen alike, take note that this article is not in defence of nor in justification of the defence of Naufer but in the vindication of the Constitutional right of every accused to be defended by Counsel of his choice and be afforded a fair trial by a competent court. If the clock was turned back, I would do so again.

But it was the tide of times and men had lost their reason.

In terms of representation, the same rule applied in Richard de Zoysa’s murder, the Udatalawinna Massacre, and the Angulana police murder, where I appeared for the accused with my Chamber in spite of public outrage over the incidents. It is not my way to scuttle away from the legal arena with dispatch because of adverse criticism in some quarters, or adverse public opinion. Nor am I used to being like the proverbial cat in a roomful of rocking chairs.
At the end of the day, the validity of the concept of criminal justice turns not on who represented whom but on impartial investigation, fair trial, and an unbiased verdict where, as oft quoted, justice must not only be done but must be seen to be done: in all three departments.  So, in the pursuit of justice, as during the Spanish Inquisition, in the Man from La Mancha, the idealism must go on even if it is to dream the impossible dream and one man all scorned and covered with scars still strove with his last ounce of courage to reach the unreachable star.