By Hemantha Warnakulasuriya

The legal profession could be considered the foremost profession in Sri Lanka as its paramount duty is to safeguard the freedoms of the ordinary people by opposing tyranny and the oppressors of those cherished freedoms. Even when a lawyer appears for the most wanted criminal, he is performing his duty much to the consternation of those affected by the crime as well as the law enofrcement authorities. The defence of the freedom of the individual as against the State is one of the cornerstones of the profession.

In the independence struggle, Sir Ponnampalam Arunachalam and Sir Ponnampalam Ramanathan were at that time leaders of the legal profession. I have written copiously on how Sir Ponnampalam Ramanathan defended the Sinhala leaders and protected them from the British firing squads when they were arrested for inciting riots during the Sinhala-Muslim riots. The very existence of the legal profession, in Sri Lanka, was threatened during the JVP uprising in the late 1980s. We have almost forgotten this period characterised by tyre-pyres where corpses were burnt.

Even the government had no control over the forces it unleashed to quell the insurgency. Unidentified armed groups went on a killing spree. And, thousands were arrested and detained without trial. The only recourse the detenues had to ensure that they would be not be ‘destroyed’ was, as one of the most powerful Ministers of all time Rajan Wijeratne remarked to a delegation of the Bar Association of Sri Lanka, was to appeal to the Supreme Court and the Court of Appeal. The armed groups sponsored by politicians in power were ill-disposed towards the legal profession. With all the gloom around the Supreme Court and the Court of Appeal remained fiercely independent.

The Judiciary was the only institution that functioned without any fear or favour.

Justice Mark Fernando took a very bold and independent stand permitting anyone, whether in custody or not, to invoke the jurisdiction of the Supreme Court by sending a letter or a mere post card.

The Supreme Court, headed by his Lordhsip Parinda Ranasnghe and later by His Lordship G. P. S. De Silva, collectively decided to entertain those applications and peruse them and decide whether there was any merit therein and then if there was any merit to refer it to the Bar Association of Sri Lanka for institution of proceedings, according to the rules of the Supreme Court. At that time, I was the Secretary of BASL and Desmond Fernando was President. We were in the forefront of the struggle to preserve the freedom of the people against anyone who was determined to suppress them.

‘Foreign Conspiracies’

Even then, foreign conspiracies to destabilize the legally elected government were glaore! One of the main conspirators was the Bar Association and among those who supported the Bar in its struggle to stop the killings were Mahinda Rajapaksa, Nimal Siripala de Silva, Dinesh Gunawardene, Prince Gunasekera and Mangala Samaraweera. They were all accused by the then government media of being agent of foreign conspirators on a mission to bring about a regime change. The legal profession and the BASL were under severe threat. I received innumerable telephone calls that my name, along with Ranjit Abeysuriya was on the top ten to be eliminated by organizations like ‘PRRA’ [People’s Revolutionary Red Army] as I was identified as a supporter of the DJV [Deshapremi Janatha Viyaparaya, the military wing of the JVP]. Everyone in the Association knew that I had absolutely no connection with the JVP and I denounced their political terrorism and their culture of violence, but as Secretary to the Bar Association, my primary obligation was to protect the lawyers whether they were supporters of the DJV or JVP or supporters of the government as both categories of lawyers were under threat by the murderous goons wielding T-56 rifles and out to kill anyone who was opposed to them.

I must say that the at that time the BASL became the only voice of the oppressed and the voiceless. I quote from my Annual Report of the Bar Association for the years1989/1990:

“The past year has, in the main, been one of continuous gloom for all sectors of the Sri Lanka community. It was the year of the worst bloodshed in the recent history of our land. It was a period when violence reigned virtually supreme over most of the country. It was a year of unparalleled fear, of continued dislocation of national life. It was a year which saw the undermining of the basic values of our society.

“It was a year which witnessed the march of violence and anti-State subversion, met by organized groups which brought our society to the very brink of disaster, from which there has been some retreat in the latter months.

“Disruption of work was the order of the day during this period. Everyone lived with the fear of the gun. The writ of the unknown, faceless, threat held sway. The closing of shops and offices, at the delivery of a note by an unknown youth became routine. Hartal achieved a new clandestine meaning. Transport was crippled. The Health Services were brought to a halt. Not unexpectedly, the administration of justice and the legal profession were not untouched by this advancing tide of threat and counter threat, of lawlessness, violence and disruption.

“The day to day work of the Courts was halted on orders from the hidden terror. Mobs directed their violence at the Courts, and more particularly, the record rooms of Court premises were gutted. The entire legal profession felt helpless. The temples of Justice were being destroyed and desecrated. Even more helpless was the average layman who sought redress in the Court.

“As the crisis deepened it affected the lives and living of lawyers as well. Threats to individual lawyers came from more than one quarter. Soon lawyers became the victims of others hunting down subversives, of the forces of subversion, and of variously named but never identified killer squads carrying on their own bloody vendetta against subversives and their alleged allies.

“The forces of division had already driven sharp wedges between the arms of the law. The Police and the lawyers seemed to stand in different camps. The BASL was drawn into the struggle in defence of the rights of lawyers, and their lives.

“Very soon it became clear that the crisis in society in general was a threat to the legal profession in particular. The practice of the law itself was made the target of attack. Many of our members, who accepted briefs to challenge the denial of Fundamental Rights, found themselves at the receiving end of mortal threats. Some were removed from our midst with violence. Others had to seek safer havens abroad.

“Still later, as certain forces asserted themselves, the BASL itself was made the target of ill-considered attacks. We were made the victims of a smear campaign with political overtones, which accused us unfairly of being agents and/or defenders of the policies and the purveyors of terror. Our record in the defence of Human Rights was questioned, and so was our association with foreign organizations which were concerned about the increasing threats to Human Rights in our land.

“As we wind up the tumultuous year, the most eventful and the most tragic year in the history of the BASL, we were glad to report that your Council and Executive Committee have together been able to steer the Association and the Profession out of the dark depths of the previous months.

“In the midst of all the terror which surrounded us, when the rest of the country was held in fear of the gun, the office of the BASL was always open. Initially we were able to restore understanding between the Police and members of the Bar. We met regularly. We discussed the most pressing issues. We were resolute in action in defence of our rights. We condemned violence from all quarters. We made representations to the Government on behalf of our members, and acted with solidarity in defence of our members.

“We attended to the routine, and carried out the innovative. We made our comments and observations on new legislation, we cautioned the government and the public about the effect of some legislative measures. We challenged bills in Court. We saw to the needs of juniors. We broke new ground on matters of their training and guidance. We laid the groundwork for help to law students.

“At the end of such a year of turbulence in the affairs of State and our Profession, we are happy to see the Profession stronger, its independence strengthened and its position as a bulwark in defence of the ‘Right of Man’ recognized even more.

“The report will place on record that the Bar Association of Sri Lanka was required to foster and preserve the Rule and the Right of the Citizen of this country, as well as to hold high the honour and dignity of the legal profession. Our aim was to be just by all members of the profession, and also take the necessary steps to protect their personal life and liberty, and their freedom to practice their profession in keeping with the high standards of the Bar.

“The tragic progress of events at a time led to grave misunderstandings, feeling of considerable suspicion and a near total breakdown of good relations between the Police and the Legal Profession.

“This followed the resolution by the membership that they would not provide legal assistance or appear for any police officer until those responsible for the death of their colleague Mr. Wijedasa Liyanarachchi were brought to justice. The subsequent move by some members of the Executive Committee to rescind the resolution was defeated. Later, even the inquest proceedings had to be abruptly ended. The resolution prevented members of the Bar Association from appearing for Police Officers. Though the resolution was later rescinded the Police did not appreciate lawyers making representations on behalf of their clients, specially at police stations, and thus the mutual trust and confidence that the Police and the lawyers had was eroded and suspicion and mistrust grew.”

These few pages of our annual report, under my hand, as the BASL, received overwhelming international recognition and was published in many international law magazines published mainly in the English speaking countries.