Posted on January 3rd, 2013

Rajpal Abeynayakr -Courtesy The Daily News 

Neither lawyers nor the judiciary can take the law into their own hands. But, in Sri Lanka, what should be apparent as to be axiomatic, seems to go by the board.

Some lawyers say that they should have the right to determine that the Judiciary should be the last word in impeachment hearings against a Judge of the higher courts. They make newspaper pronouncements to this effect, and launch a massive media campaign, and also get onto the streets — not mentioning that they also convert Hulftsdorp into a Lipton’s circus.

Deputy Speaker
Chandima Weerakkody

Attorney-at-Law S L Gunasekara

But anybody entertaining a differing point of view on the matter is immediately cast as a “ƒ”¹…”hate’ campaigner, and worse!

It is not the first time that this sense of entitlement of the lawyer community has become so apparent. It is as if “ƒ”¹…”we are lawyers, we should be entitled to all the privileges of making and breaking laws, at our own convenience!’.

This is obscene. Now, this cabal of lawyers say that those who offer any other viewpoint on the impeachment, are in Contempt of court. This is despite the fact that Parliament has pronounced that Members of Parliament who respond to Appeal Court notices over the PSC proceedings are in contempt of the Legislature.

Has there ever been a more puerile effort then, to show off the black coat, to say that we not only argue on the basis of the law, but we “ƒ”¹…”possess’ the law as well?

These are the same types of lawyers who flagrantly flout the law, and then dare people to take them to court because they think that they are in possession of the law, and would therefore be able to get away with murder. The Voetlight incident is one such example. This writer shall not elaborate, as those who are aware of the issue would immediately draw the necessary connections.

Opposing view

The law however, is larger than the aggregation of all the lawyers and all the judges in Hulftsdorp. Nobody possesses the law by virtue of wearing a black coat. Therefore, those Lawyers Collective (more NGO men than lawyers; neither is it a “ƒ”¹…”collective’ that is in any sense representative ..) black-coats who say that theirs is the only stand there is on the impeachment and that anyone else who takes an opposing view is a “ƒ”¹…”hate campaigner’, have to learn that they need to co-exist with greater powers than them.

One of these goes by the name of The Executive, in case these people haven’t heard. The other goes under rubric of the “ƒ”¹…”Legislature’. There is still another which goes by the description of Fourth Estate.

All of these separate forces combine to make up a democratic polity. The lawyers are but players in the judicial establishment — and it is not as if Judges belong to them, or the constitution is their own document, because they think that being in Hulftsdorp somehow gives them the primacy over everything that happens in the legal arena.

The Judiciary has in the meantime been told in no uncertain terms that their writ does not hold on everything, and MPs who flout that constitutional dicta are condemned to do so under pain of being hauled up for contempt of the Legislature! None other than the Deputy Speaker of the elected Parliament of Sri Lankan asserted this in statements issued to this and other newspapers.

Impeachment charges

Now, what gives some lawyers and some judges the notion that they could fly in the face of the constitution, and constitutionally mandated roles played by other arms of State (“¦ Edmund Burke famously coined the term Fourth Estate) in what seems to be a unique Sri Lankan proclivity?

Clearly, judges who are being investigated on impeachment charges have no recourse to judicial review in the United States for instance, and this has been settled law in the State of Michigan for example. It is obvious that no polity can function if the Judiciary constantly keeps overriding the Legislature, in areas that are clearly turfed out constitutionally for lawmakers.

Ballage wede, cannot be done by the booruwa. The Adhikaram’s and the Nadukara Hamuduruwos of the days of the Sinhala kings would have made this clear to the lawyers of today!

Parliamentary proceedings

What is at the root of this lawyers’ sense of entitlement, is the fact that lawyers in most countries represent privilege. This has been the case in the United States as well; and courts too through judicial review, have kept privilege — and repression by the privileged classes — intact through instruments of court. Enlightened legislation on racism for instance would have been a reality in the USA centuries back if the Judges did not work on behalf of the privileged classes through court.

But, the tendency of the lawyers to think that they can use the black coat as a badge to evade the law is long gone in the United States. Not so in Sri Lanka, it appears.

Manipulate law and constitution

Supreme court complex

This is probably because the legal system replete with laws delays etc., works heavily against the interests of the litigants, and in favour of the lawyers, who therefore feel as if they somehow possess the power over life and death or the futures of their litigants.

The other aspect is that Hulftsdorp has still not been wrested away from those who think that they are entitled to be in power, and that anybody else in power is there by accident. It is this sense of entitlement that is in the main, the propellant that gives lawyers the feeling that they could somehow manipulate the law, and the constitution to their own benefit.

The issue of the CJ’s impeachment can be cut in many ways, but despite what S. L. Gunasekera in his naivety thinks, this too is an issue of privilege, in which a privileged branch of the State, the Judiciary and its apparatchik lawyers – – want to maintain their position of privilege through which, as in the early Unites States, they could rule the country almost by default. Fortunately, the country does not stand for it.

The lawyers cannot show their black coats and take the law into their own hands, thanks to a Legislature, and a section of the media with a spine!


  1. callistus Says:

    This whole episode is a blessing in disguise for the government. The government is now having an opportunity to educate the whole country about how the judiciary and the legislature operates and what the constitution is etc. It is high time the judiciary is taken a peg or two down. Thanks Rajpal.

  2. cassandra Says:

    No sane person would disagree with the sentiment stated in the heading to this article, ‘NO SIR — LAWYERS AND JUDGES CANNOT TAKE THE LAW INTO THEIR OWN HANDS’. I cannot say, however, that the rest the article makes a lot of sense.

    Where, for instance, is the relevance of the ‘Fourth Estate’ to which the writer refers? It simply has no significance in the current context. The ‘Fourth Estate’ that Edmund Burke spoke about was the press. What he was saying was that in addition to the three dominant forces of power and influence then prevailing– the Lords temporal, the Lords spiritual and the Commons – there was a fourth set wielding similar influence, a fourth estate, the press. Now, what on earth has this to do with the matter of the impeachment and the roles of the legislature and the judiciary?

    The article concludes with the observation that the “ lawyers cannot show their black coats and take the law into their own hands, thanks to a Legislature, and a section of the media with a spine!”. I wonder who the writer had in mind when he wrote about “a section of the media with a spine!”. A “section of the media with a spine”! Surely, he cannot have been referring to the acquiescent, servile, state media of which he is a part, could he?

    By the way, I wonder whether all these people who have been attacking lawyers, calling them all sorts of names, most commonly referring to them as ‘black coats’ have stopped to think that the President himself (remember how he famously declared not so long ago, “I am also a lawyer”?) is part of that fraternity . For good measure, so is his son.

  3. Marco Says:

    Incidentally, the author Rajpal is himself a “black coat”.
    If i recall was he not assaulted by his own fraternity in Dec 2011 at the Voetlights dinner of the Bar Assoc for writing adverse comments regarding the former CJ Silva whilst he was the editor of Lakbimanews?

  4. NeelaMahaYoda Says:

    So what Marco? Everyone including all black coats eligible to have their opinion.

  5. Marco Says:

    NMY- Thanks you should proved my point.

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