| by Basil Fernando
( December 8, 2012, Hong Kong, Sri Lanka Guardian) The letter written by the senior and well-respected lawyer SL Gunasekara provides a very thought-provoking approach to dealing with the present impasse created by the government’s wish to proceed with the impeachment against the Chief Justice Shirani Bandaranayake, which they are doing irrespective of the request made by the Supreme Court to delay proceedings on this matter until they make a determination on the question for reference made by the Court of Appeal. The government is also ignoring objections taken on the basis of serious legal grounds – that the removal of a superior court judge should be preceded by an inquiry of an impartial tribunal consisting of judicial officers.
The bitter experience of the last few decades has given rise to very profound reflections among legal practitioners, as well as the informed public. There are times when the self-understanding of follies leads people to wisdom.
In short, the suggestion made by Mr. SL Gunasekara is that the Bar Association should resolve that none of its members would accept the post of Chief Justice in the event that the incumbent Chief Justice is impeached without proper process, and that no other judge should sit with such a person who may accept such a position, and that the lawyers should boycott appearing before such a person.
SL Gunasekara is a lawyer with many long years of practice in many capacities and his book The Lore of the Law and Other Memories reflects a very deep disappointment in the manner in which the judiciary and legal profession has sunk to the lowest depths in recent decades.
The way he tells the story of “the good old days” and about the present day practices should be read by anybody who wishes to grasp the kind of crisis the rule of law is facing in Sri Lanka. It is on the basis of such deep reflection that the present resolution has emerged and I am sure that any sensible lawyer or judge would not find it difficult to agree with the proposal he has made.
His proposal reminds me of the lawyers’ movement in Pakistan. Mr. Muneer A. Malik, one of the leaders who provided the perspective for this movement, has provided many insights into the strategy that the lawyers’ movement adopted when General Musharraf called their Chief Justice Iftikhar Muhammad Chaudhry and asked him to resign from the post of Chief Justice, threatening him with impeachment if he did not comply.
As this news reached Mr. Muneer Malik, who was then the President of the Supreme Court Bar Association in Pakistan, he has said in public that he immediately called the Chief Justice and told him that if he does not succumb and give into this request, the lawyers in Pakistan would stand by him to the end. He also said that he told the Chief Justice that if he were to betray them, they would also not hesitate to expose him.
He and others have said that they were not great admirers of Chaudhry as Chief Justice as he had taken some compromising decisions in the past. However, what they were defending at that moment was the independence of the judiciary. One of the Pakistani lawyers’ methods was to withdraw cooperation from those interim judges who were appointed by General Musharraf. Thanks to that bold support, soon a movement grew from among the lawyers and judges, many of whom dared even to face prison terms in pursuit of this cause. Mr. Muneer Malik himself was imprisoned and even denied medical treatment.
As SL Gunasekara has pointed out, the challenge at the moment is to stop the process of the sinking of the judiciary to a stooge judiciary. This aspect has been raised by many others, including myself, who have participated on this issue since the impeachment motion was announced.
The Sri Lankan judiciary has gone down a long way towards becoming a stooge judiciary. In fact, at the time when SN De Silva was the Chief Justice, it was indeed reduced into a thoroughly stoogelike position. Beginning with the 1972 Constitution, continued through the 1978 Constitution, there has been a campaign to reduce the independence of the judiciary and turn it into less than a separate branch of government. Even the wording of the 1978 Constitution, that the people’s sovereignty would be exercised by the parliament through the judiciary, was a formulation that tried to create a doctrine that the judiciary was a lesser branch of government as compared to the legislature.
The bitter experience of the last few decades has given rise to very profound reflections among legal practitioners, as well as the informed public. There are times when the self-understanding of follies leads people to wisdom. Perhaps what we are facing at the moment in terms of justice in Sri Lanka is such a moment. On such occasions, it is possible to forge a will to counteract even the harshest odds and to turn events to better achieve what the people consider to be the good and the right thing to do.
It is better than lamenting the past and cursing the villains; better to take a bold step to turn the course of events. In the suggestion made by SL Gunasekara, such a position has been suggested. I am sure that the great legal minds of the past who have walked the Hulsdorf, such as HV Perera, HL De Silva, Sir Sidney Abrahams and Neville Samarakoon and many others would, in a situation like this, have found this proposal made by SL Gunasekara to be the appropriate and proper decision to take under the circumstances. It is to be hoped that the Bar Association will soon adopt this resolution and mobilize the lawyers to implement it.
Mahanayakes and the other senior representatives, the academics and professionals, and people from many other walks of life who, in the recent weeks, have taken a very active interest in the impeachment issue, could now give moral support to this proposal and exhort that no one should accept the position of Chief Justice in the event of an impeachment until this matter is properly resolved.