SRI LANKA: Will the Bar Association seriously defend the survival of the legal profession and judicial independence
The Sunday Times reported that the Bar Association of Sri Lanka (BASL) has decided to intervene in the contempt of court case filed by seven senior lawyers against Minister Rishad Bathuideen over the threats he is alleged to have made to the Mannar magistrate. Earlier these seven lawyers, Geoffrey Alagaratnam PC, Sunil Cooray, Lal Wijeyanayake, Chanrapala Kumarage, E.C. Feldano, Nalini Kamalika Manatunga and A.S.M. Perera initiated the contempt of court proceedings against the minister in the Court of Appeal. The Court of Appeal Judge, W.L. Ranjith Silva on Thursday issued a rule on Minister Bathuideen to appear in court on September 5 to show cause as to why he should not be punished for contempt of court for allegedly threatening the Mannar magistrate.
The Asian Human Rights Commission welcomes the intervention of the BASL and at the same time repeats the call it has made on several occasions in previous years for the BASL to lead the fight against the virtual collapse of the rule of law in Sri Lanka and the threat this poses to the judiciary as well as to the very survival of the legal profession.
There have been no arrests following the attack on the Mannar courts. Nor has the government taken any action to deal with the minister who is alleged to have been behind the threat to the Magistrate and the attack on the courts.
The lawyers and judges who boycotted all the courts in protest against these attacks have demonstrated the utter frustration felt by all of them as well as the people of Sri Lanka over the serious crisis of law which affects every aspect of their lives as well as their properties. The basic rights that the Magna Carta assured for the people, the right to protection of personal liberties and property has been under threat in Sri Lanka for several years now. This is perhaps the first occasion on which the judges and the lawyers have spontaneously reacted by way of a boycott of courts.
In fact, this should have happened quite a long time ago. It is reported that when, under the UNP regime stones were thrown at the Supreme Court judges, judges of the lower courts discussed the issue of boycotting courts in protest. Unfortunately that was prevented due to ill advice. However, had the judges and lawyers acted strongly at that stage the present impasse would not have happened.
For years there have been many occasions when much more decisive intervention by the judges and lawyers to defend their own independence required a serious understanding of the situation and a well thought out strategy to retaliate against this threat to their very existence. Perhaps the former Chief Justice, Neville Samarakoon, who did realise how his former friend, President J.R. Jayewardene was undermining him and the whole judiciary may have done better by resigning or taking some dramatic stance than merely confining his protest to some strong words.
In the period that followed much more leadership ability to defend the very system of the judiciary should have come from the country's senior judges. In India the Supreme Court clearly comprehended the authoritarian ambitions of Indira Gandhi and played a decisive role in defeating her schemes, thus protecting the country's rule of law and democratic system. The Supreme Court of India also defeated the attempt by the right wing BJP government in their attempt to reform the basic structure of the Indian Constitution. The court bravely held that no government has the authority to undermine the basic structure of democracy as enshrined in the Indian Constitution.
In Sri Lanka President Jayewardene did undermine the basic structure of the country's democracy through the 1978 Constitution. What became of Sri Lanka thereafter has its ultimate root in this altering of the country's basic constitutional structure and replacing it with a basic structure that is undemocratic and which undermines the rule of law.
There were times when even the Chief Justices collaborated with the executive presidents to further undermine the very basis of the existence of the law in Sri Lanka. The dark period under the former Chief Justice, Sarath Silva, who acted to fulfill the ambitions of the then executive president, Chandrika Kumaratunga has left insurmountable obstacles for the recovery of the system of the rule of law and democracy. His fallout with incumbent executive president did not contribute in any way to undo the enormous damage that was done to the basic structure of the Sri Lankan democratic system.
The deformation of the country's basic structure was brought to even higher levels with the adoption of the 18th Amendment to the Constitution by the government of Mahinda Rajapakse. So many actions have thereafter been taken to complete the course of erasing whatever might remain of the democratic tradition. The virtual subordination of the country to a public security system with no respect for personal liberties or property rights of the citizens has advanced in recent years.
Throughout all these crises the attempt by the judiciary as well as the legal profession under the leadership of the BASL has no proud moment to record. Perhaps the only light at the end of the tunnel was this boycott which came as a reaction to the attacks on the Mannar Courts.
Perhaps the prevalence of an overall situation of the conflict between the Sri Lankan government and the LTTE has provided a useful background for the governments in power to allow curtailment of the serious resistance of democratic forces against the authoritarian course they are taking.
Some may say that things have gone too far and now it is too late for any attempts at reversal. No doubt there is considerable truth in such perceptions. However, the very survival of the judiciary and the legal profession are at stake. Particularly the younger generations entering these professions can see quite clearly as to how they are trapped and how their future is threatened.
There is the example of the lawyers in Pakistan who fought a successful fight against the subjugation of the judiciary and the legal profession under several military regimes. There is much to be learned from their brave and courageous struggle.
The lawyers and judges in Sri Lanka must face their own destinies with seriousness; will they be doomed to an existence of subjugation under an authoritarian system or will they fight back to regain the basic structure of democracy and the rule of law that has been severely undermined.