Issues
Respect for the Judiciary in Sri Lanka: Are lawyers a rapacious breed, a case for the death penalty and other matters
‘We as judges of this land must take the lead from our departed friend and colleague, that no bullets of any calibre, knives of any depth, clubs of any weight, shall ever deter us from taking the exalted and well traversed path to do justice for all those who come before us.’ – Rohini Perera J, Secretary of the High Court Judges Association.(2004)
The above mentioned words of Rohini Perera, Judge of the High Court of Colombo(presently Rohini Marasinghe Justice of the Court of Appeal of Sri Lanka) in her oration delivered at the fun
Justice Rohini Perera: 'We as judges of this land must take the lead from our departed friend and colleague, that no bullets of any calibre, knives of any depth, clubs of any weight, shall ever deter us from taking the exalted and well traversed path to do justice for all those who come before us.'
eral of late Justice Sarath Ambepitiya, in the year 2004, in essence epitomizes the values and the principles held sacred by the judiciary of our land at all times.
Unflinching
It was also said in the same oration that ‘The first principle in judging is the maintenance of the Rule of Law. The maintenance of the Rule of Law requires both erudition and fortitude. The judge must both be learned and must be unflinching in the fair and equitable dispensation of justice.’
Irresponsible statements regarding the judiciary made without thought at public meetings by politicians would erode the public confidence and the respect for the judiciary. Any responsible person should refrain from making such unnecessary comments, which would not serve the public interest.
Media should not publish ridiuculous comments
Even if such statements were to be made it is the duty of responsible media be it print or electronic, to refrain from publicizing such ridiculous comments made without consideration for their effect on the greater public interest, as such publicizing could erode the respect of the public for the judiciary.
Protests have been made by human rights activists regarding the re-activation of the death penalty, but these activists should also consider the supreme violation of the right to life of all those who become victims of such horrible crimes at the hands of heartless criminals, such as those who assassinated Justice Sarath Ambepitiya and Inspector of Police R. A. Upali, who was performing his official functions.
Forfeit rights by conduct
Those who appeal for mercy should also be merciful. Unfortunately, there appear to be persons born in human form, who are inhuman in their actions. Such persons cannot lay claim to the rights of a human being as by their very conduct they forfeit their right to such claims. A person who takes another person’s life after executing a premeditated plan, without any enmity or any wrongdoing against such person on the part of the victim, constitutes a grave threat to society.
This does not mean that murder in any form should be condoned. The law provides the necessary safeguards to persons who commit murders due to sudden and grave provocation etc. Some very gruesome murders have been committed in this country after the de-activation of the death penalty such as those of Saddepa Lakshan, an innocent child murdered in the course of an extortion attempt, Rita John, murdered brutally after a gang rape, Hokandara rape incidents and murders, Frazer Avenue murders and more recently the murder of a mercantile executive in the presence of his wife and child to rob the luxury vehicle presented to him in appreciation of his hard work by his company etc.
Dumb with shock
It is said that the wife of the victim has been unable to speak due to the shock received in witnessing the said murder. What do the human rights activists say about the human rights of the victims of the said murders? Do they say that they regret these dastardly acts but the right to life of the brutal inhuman murderers should be protected, in order that such murderers could have the freedom to roam about in society after serving a few years in prison in order to repeat such dastardly acts? It is time that such human rights activists learn to hold the scales of justice evenly in their hands as judges do.
A case for the death penalty
Justice demands that punishment should be commensurate with the offence. Experience in the past has shown that reformation and rehabilitation is not possible for habitual killers with brutal instincts. Serial killings are an example of such inhuman instincts.
Although Sri Lanka is a country nurtured in the noble Buddhist traditions of forbearance and compassion, it is well-known that even during the times of the Sinhala kings deterrent punishments of a most terrible nature were meted out to criminals.
Gold will be safe
It has been said that during those times a lady wearing all the gold ornaments could walk from one city to another without any harmbefalling her. In the present times a lady wearing a gold chain cannot walk on the road for a short distance without some drug addict or such person grabbing her simple gold chain, which may be her only valuable possession.
Witness protection
For law and order to prevail the criminal justice system in this country should be reformed to deliver swift and deterrent punishments to heartless criminals. A protection procedure should be put in place to protect the witnesses of terrible crimes, such as those found in the United States where the witnesses are even given refuge abroad subsequent to changing their identities so as to prevent identification by those seeking revenge.
When the criminal who is convicted due to the evidence given by any witness is a member of an organized underworld gang or a terrorist group, the remaining members of such gangs and groups are bound to take revenge from informants and witnesses in order to deter anyone, who may engage in such activities against such gangs or groups in the future. In the recent past several such informants have been murdered in this country.
Even if an attractive reward such as the reward offered in the case of the assassination of Justice Ambepitiya were to be offered, the informants would be in fear of their lives to come forward in the present situation, in the absence of effective witness protection procedures in place.
Can’t make bricks without straw
The investigative procedures in the Police Department should be brought up to-date with the introduction of modern technological tools presently being used in such work in advanced countries. Police personnel should be given advanced training in such investigative work. It would be ridiculous to blame the Police for inefficiency in such investigations without the provision of the necessary advanced technological tools and trained personnel by the State.
Fear of punishment in applications for violations of fundamental rights made by criminal elements against police personnel has become a deterrent in such investigations, some of which have come to a standstill due to such frivolous applications. In the writer’s opinion, such applications should be viewed in a proper perspective taking into consideration the greater public interest and safety in delivering judgements in such cases.
It is human to err
Imperfection is a human trait. Human beings in all walks of life be it the clergy or the judiciary, the legal, medical or engineering professions or any other are prone to such imperfections. The erosion of public confidence and respect for the judiciary by unnecessary and unwarranted publications and utterances is not in the public interest and should be avoided at all costs.
Those who make such publications and utterances would be contributing to the contempt for the Rule of Law in this country thereby bringing about the decay of spiritual and moral values of our society, which would finally affect the lives of all the members of our society.
Such critics should do well to remember the words of Lord Denning, a great English judge, who said that ‘All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy.
Respect cannot be demanded
Respect cannot be gained by demand. As the Buddha said in the Wasala Sutta :No one is born as a wasala (a lowly person) or a brahmana (a highly respected person), but by one’s own conduct one would be regarded as a wasala or a brahmana.’ A person should command respect for other human beings by such person’s exemplary conduct’.
Lord Denning’s words with reference to the judiciary that ‘We must rely on our conduct itself to be its own vindication’ become relevant in this regard. It is also equally relevant to note the words of Christ when He said ‘he who hath no sin let him cast the first stone’ as people were getting ready to kill the sinner by stoning. Everyone turned away as there were none who have not sinned.
No one is infallible
When criticizing others it would do well to look into one’s own self first as no man (or woman) is infallible.
As a legal practitioner, who has appeared before judges of both the superior and lower courts of this land, for whom the writer has the highest regard and respect, it is the writer’s personal experience that the dispensation of justice by the judiciary of this country is both fair and equitable to a very large extent.
Any person aggrieved by a judgement of a lower court has the safeguard of the right of appeal to a higher court. It is unfortunate that the assassins of Justice Ambepitiya, who may have been motivated by an adverse judgement, did not realize that all his judgements were appealable as there are rights of appeal to the Court of Appeal and thence to the Supreme Court from a judgement of a Provincial High Court. Any criticism should be constructive and not destructive.
It is not freedom of the wild ass
Such criticism should not amount to a contempt of court. Even freedom of expression has its constraints. lawyers are friends of the court (amicus curiae), who bear a bounden duty by the court to show proper respect for the judiciary at all times in their career. Bowing to the judges/judge on the bench when entering and leaving a Court in session is an age-old tradition among lawyers, which practice strengthens the respect of the public for the judiciary.
Tragic killing of Justice Ambepitiya
With the unfortunate, untimely and tragic demise of Justice Ambepitiya, who dispensed justice at all time without fear or favour, which has been described as the first such incident in Asia, the people of this country have been confronted with the stark reality of the impact that such an event could have on civilized society.
The people have been undivided in condemning the dastardly act, which will be etched in our legal history as the most unfortunate incident ever to have occurred.
Justice where art thou fled?
In the Sunday Times Sri Lanka of 12th December 2004 in a column known as ‘Thoughts from London’ written by Neville De Silva under the title ‘Justice where art thou fled?’ strong objections were taken by the writer of that column to a purported decision of the Bar Association that no lawyer should represent the accused in the Ambepitiya murder case.
My reply to the comments made in that column were published in the Sunday Time of 26th December 2004 under the title ‘In Defense of the Legal Profession’ thus: Neville de Silva begins his thoughts from faraway London with what he terms a perceptive observation made by the subject of James Boswell’s book ‘Life of Samuel Johnson’ which in essence is that although it is not proper to speak ill of a man behind his back, it would be alright to do so if that particular gentleman was an attorney.
Only cowards speak ill of men behind their backs
It is well known that only cowards speak ill of men, be they lawyers (gentlemen) or otherwise, behind their backs as such cowardly persons are afraid to grant an opportunity for the men so defamed to protect their integrity and character by the right of reply to any false and malicious statement made by an accuser. It is a basic principle of natural justice that a fair hearing should be granted to a person who is found fault with by another in any manner whatsoever….
‘Kill all the lawyers”
Then the thoughts from London go back two centuries or so from Boswell and end up with Shakespeare’s words in Henry VI (Part II): quoted as ‘The first thing we do, let’s kill all the lawyers.” Mr. de Silva has failed to realize that Shakespeare wrote these words as uttered by Dick the butcher in his conversation with Jack Cade the rebel, when the said rebel was saying what he would do when he became king (see page 55 of The Complete Works of Shakespeare – Wordsworth Edition – 1996). It is obvious that rebels and butchers who assist rebels would prefer not to have any lawyers around or for that matter such persons would be in favour of the total extinction of law and order.
Victims of malevolence
After quoting the butcher’s words with relish the thoughts become somewhat regretful that society would not accept such a drastic method of extinction of the species, however rapacious the breed is. The question is then asked whether there is a loss of respect for the administration of justice in our society and if so who is responsible for such loss as Mr. de Silva states that it is well known that those who practise law and sit in judgement in our courts are increasingly becoming victims of malevolence. If one who writes such comments were to look into a mirror a part of the answer would be clearly discernible.
It is also relevant to note here that such great men like Mahatma Gandhi, Abraham Lincoln and S.W.R.D. Bandaranaike, who were lawyers were assassinated (as if to make the words of Dick the butcher quoted by Mr. de Silva, come true) by stupid persons who failed to understand the service rendered by such personages. Mr.de Silva further states that when a judge is killed (referring to Justice Ambepitiya’s murder) ‘everybody is in a hurry to voice their anger and protest but when lesser people were killed or otherwise suffered injustice they have maintained a deafening silence’.
Rendered great service
Mr. de Silva should perhaps ask himself the question why when Mahatma Gandhi was assassinated almost the entire
populace of India wailed and some even committed suicide, which did not happen when other people died in India. The social reaction to the demise of a person depends on the service that such person has rendered to society.
Thus the Bar Association of Sri Lanka (BASL) and the Organization of Professional Associations (OPA) of both of which the writer is a life member, quite rightly deemed it necessary to call for justice and apprehension of those responsible for the dastardly act of the assassination of Justice Ambepitiya, which Mr. de Silva seems to find amusing.
BASL position misunderstood
Mr. de Silva has misunderstood the position of the BASL (the views expressed here are the writer’s own opinions and not those of the BASL) when he states that the leadership of the association has advised lawyers not to appear for the suspects in Justice Ambepitiya’s murder case and advises them to acquaint themselves with the UN’s Basic Principles on the Role of Lawyers, the draft Universal Declaration on Independence of Justice, the International Convention for the Preservation of Defence Rights and the I.C.C.P.R.
In the first place all lawyers are not members of the BASL. Thus it cannot advise lawyers in the manner stated by Mr. de Silva. None of the members of the BASL had been informed by the BASL by way of a circular, as it is usually done in the event of such a resolution being passed, not to appear for the accused in the said murder. Mr. de. Silva does not have to pontificate to the leaders of the BASL to refer to international conventions with regard to the right of defence of an accused as Article 13(3) of the present Constitution of Sri Lanka provides that ‘Any person charged with an offence, shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trial, by a competent court’ and Article 13 (5) provides that ‘Every person shall be presumed innocent until he is proved guilty: provided that the burden of proving particular facts may, by law, be placed on accused persons’.
It is also interesting to note that Mr. de. Silva, who quotes with relish the words of Dick the butcher, ‘The first thing we do, let’s kill all the lawyers’ at the beginning of his thoughts, laments at the latter part that the BASL has advised lawyers not to defend the accused in the aforementioned case.
If all the lawyers, who are a rapacious breed, according to Mr. de Silva, were to be exterminated as Dick the butcher said, what would be the plight of the accused in the above case? After all is said and done even a critic of the legal profession such as Mr. de Silva has finally come to realize the value of the services rendered to their clients by lawyers. Of course, there are several criteria that govern the acceptance of a brief and an Attorney-at-Law is not required to accept a brief simply because an accused person wishes that such Attorney-at-Law should take up his case. (See chapter XVI Professional Ethics and Responsibilities of Lawyers – Justice A.R.B. Amerasinghe – 1993).
Although I expected a reply to my comments from Mr.Neville De Silva it was not forthcoming.
I have re-iterated the above matters in this piece as they are relevant to the ongoing discussions on judicial independence and the role of the legal profession in Sri Lanka.
7 Comments to “Respect for the Judiciary in Sri Lanka: Are lawyers a rapacious breed, a case for the death penalty and other matters”
August 23, 2011 at 1:51 pm
I agree with your other comments.What about death penalty for robbing the taxpayer of his priced holdings, What about taking over of the assets of the perpetrator of his assets and those of his immediate family and those of his near and dear relatives. Let them go about in their “jungies” as a punishment
August 23, 2011 at 1:46 pm
“the dispensation of justice by the judiciary of this country is both fair and equitable to a very large extent”Mr. Kirthisinghe?……..A so called Male A is found guilty of robbing the poor and the rich tax payers by selling peoples assets – public assets- under questionable circumstances and he is forced to resign from holding any appointment in the public sector, but he is now back at his former game. Laugh your guts out please
August 16, 2011 at 12:30 pm
I totally agree with the writer. This country is in a mess because JR Jayawardena with his darmista society canard released persons like rohana wijeweera and foisted on us those rebels once again. I agree we have to deal a really firm hand and root out all these bad elements and have very public punsihments like in the middle east so that people will be scared
August 16, 2011 at 12:28 pm
If we take Jesus’s words quoted in this article seriously, then how can we condone the death penalty? We do not have a right to take away the life of any living thing. When it comes to human beings even more so.
September 10, 2011 at 9:44 pm
Please see my reply below.U ARE RIGHT AS THE BIBLE SAYS ‘NO MAN SHOULD SIT UPON JUDGEMENT ON ANOTHER LEST HE BE JUDGED.’
August 16, 2011 at 12:24 pm
DEar Mr Keerthisinghe, I do not agree with you regarding your support for the death penalty. It is not about the punishment, it is about getting the wrong person. How many cases have there been of people’s lives ruined because of the wrong person accused and jailed. espcially in the climate of impunity sri lanka is in now it is not wise to reactivate the death penalty
September 10, 2011 at 9:42 pm
u may be right.As stated in the Bible no man should sit upon judgement on another lest u be judged.Judgement is God’s pregorative not ours as no man is infallible.