Call Weliamuna, Upul and Bar Assn’ anytime for sunny-side justice

| by Rajpal Abeynayake

(December 04, Colombo, Sri Lanka Guardian) Come on, come all and hear this: the Bar Association of Sri Lanka, the body that represents the lawyers of this country, has now come out with an Executive Committee resolution which effectively states that a probe into the most glaring incidence of the subversion of independence of the judiciary in this country seen in recent times, should be abandoned. Yes, you did read that right.

And who was behind the train of events that led to this resolution? Among others, J.C. Weliamuna, that former, very transparent head of Transparency International, Sri Lanka. There was also the arch UNPer Upul Jaysuriya. These people with some others first voiced the opinion that a Parliamentary Select Committee (PSC) now planned to probe the string of malpractices committed during the tenure of Sarath N. Silva as the chief justice of this country which seriously jeopardized the independence of the judiciary, be abandoned.

Case for the Guinness Book

The Bar Association led by UNP apologist and long time UNP acolyte, former attorney general Shibly Aziz then took up the chorus, and have now got across a Bar Association executive committee resolution decrying the planned PSC to probe the conduct of Sarath N. Silva, when he was in office of Chief Justice.

So, the appalling and well-known assaults on the independence of the judiciary that range from arbitrary sacking of judges without any due process, to the appointment of a known underworld figure as the caretaker of the Judges Institute which would have been probed long ago, should now go unchallenged according to the worldview of those such as the very transparent Mr. Weliamuna and Mr. Jayasuriya, and the executive committee members of the Bar Association.

This should be a case of the Guinness Book of World Records — a Bar Association that actively campaigns against an effort to look into a serious compromise of independence of the judicial establishment, the same one that they conduct their lucrative practices in. Just who are these brilliant guys anyway?

Their reasoning for this action may as well be that Sarath N. Silva was no good, and of dubious character and a serious threat to the judiciary, as long as he was on the other side — but now that he is on our side, his entire conduct posing a danger to the judicial establishment of this country should of course be excused; why do you even have the temerity to ask?

Upul Jayasuriya should take the cake. He is a card-carrying long-standing UNPer who inveighed against the then chief justice Silva when he was in office, and did everything possible other than coming forward in a court of law against the gentleman, to oust him from the post of CJ, particularly because he was seen to be in active co-operation with the then regime which Jayasuriya was politically against. But, then, strangely ex-chief justice Silva turns against the government, and joins political forces with the opposition including Jayasuriya’s UNP, and there we have Jayasuriya immediately singing the man’s praises starting with an article contributed to the Sunday Leader, soon after Silva made his side known.

I say that Jayasuriya should have put his hand up, spared us the pain, and declared loud and clear at the fish market, ‘I am not a man of principle, I am but a loud and cheap tub-thumper and kettle-banger for my political party, and by extension for myself, that’s all.’ Weliamuna is not very much a different kettle of fish. He may not be a member of any political party — at least not that we know of — but being the well palm-oiled NGO man, he sort of automatically falls in with the political party of that NGO type persuasion, and sings hosannas for any perfidious partisan adventure that this party gets up to. Shibly Aziz is of course an open UNP party animal, and to ask such people to stand up on matters of principle would be a tad optimistic to say the very least.

Now, the rationale of the Bar Association in coming up with this mysterious resolution asking for the abandonment of the proposed Select Committee process to probe into the conduct of Sarath N. Silva is the amazing one that Parliamentary Select Committees are not mandated to probe judicial officers who have retired, even though constitutionally sitting judges can be brought before a Select Committee for impeachment proceedings. Probing Sarath Silva, therefore they say, is a threat to the independence of the judiciary!

Parliamentary Select Committees can be appointed to probe into any wrongdoing that concerns the sovereign people of the country, and in the absence of any other mechanism to probe the wrongdoings of a retired judge, a PSC is the only viable way to step into the lacunae and probe the substantial allegations of judicial malpractice that stand against Sarath Silva’s name.

The most important point here is that almost all of the UNP dominated movers and shakers of the Bar Association at one time or the other were the most vehement in saying that Silva was a major threat to the independence of the judiciary, and was corrupt, and should be impeached. They in fact tried their utmost to have him impeached with the help of the UNP Parliamentary opposition of that time. So they have acknowledged that Sarath Silva did great wrong, unless they all want to end up with enough egg on their faces to make the whole of Hulftsdorph stink by saying now that Sarath Silva was in fact a progressive force in the judiciary, as Upul Jayasuriya says now after he changed his particular tune of the season.

By now coming out against the PSC that finally after many years of neglect of the issue tries to catch up with the negative force that was Sarath Silva, they all in unison acknowledge that they are charlatans or frauds of some kind, for having offered no explanation as to how Sarath Silva should be allowed to go scot free for all his perfidy, for which they vouched for all those years.

The appointment of the PSC may be due to the fact that those in power now want to, for political reasons get even with Sarath Silva, because he is now on the other side. Few would deny that. That does not, simply does not, alter the fact that Sarath Silva did wrong. The only message that the Select Committee can give sitting judges is that they should do no wrong, because it is bound to catch up with them one day if they do, one way or the other. Whatever the case may be on the reasoning behind the current PSC, this is definitely not a bad message to give a judiciary that has been seriously compromised in the past few years, if one were to only listen to these same gentleman who now have come to the curious aid of the same man they lambasted as the devil incarnate not many moons ago.

The paramount aim of the Counsel of court should be to safeguard the independence of the judiciary, and no matter the reasons for which the PSC is being appointed, it is a serious violation of the independence of the judiciary that it seeks to probe. There aren’t many ways to do it. Erring judges come before parliamentary bodies in other countries as well, the principle being that there are none better than the elected representatives of the people to decide on whether they have misbehaved, though normally, in good behaviour, they are not touchable by the legislative branch. In the United States for instance, judges including Supreme Court judges, come before a Congressional Committee for ratification and investigation into suitability in terms of integrity, independence, etc., even before they are appointed.

There is precedent

So there is enough precedent to say that it is the legislature which should probe the malpractice of any judge, either before, during or after any appointment to a key judicial post. The Jayasuriyas, the Weliamunas and the Azizs know it. It is just that no crook is a crook when that crook is now our own crook, right folks?

We all know that the person concerned is on their side now — a judge who should be censured in the first place for dabbling in partisan politics at the end of a substantive judicial career. A judge who does wrong should be held accountable, and it is a matter for satisfaction that some process should catch up now with Sarath N. Silva; after all, nobody either for partisan or non-partisan reasons could have said or done anything against him if he did no wrong, and that is the important point. It’s the point that the shameless straw-men in the Bar Association completely miss in their ugly partisan whirligig to save their man of the moment, Sarath Nanda Silva.

( The writer is Editor of the Colombo based weekly the Lakbima News where this piece originally appeared )

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Author: Sri Lanka Guardian

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