Apr 12

The 17th Amendment, although in need of improvement, was one of the rare pieces of law-making to which virtually everyone in Parliament agreed at the time it was passed.  Inter alia, it provides for the formation of a Constitutional Council (CC) of 10 members by a process which is defined.  However, there is nothing in the 17th Amendment which states that, if one member of the CC dies or is absent or has not been appointed (say, after someone has resigned), that the CC cannot function.  Natural justice and common sense would clearly support the view that, if there are more than 7 members (ie. two-thirds of the total) present, it should be sufficient to form a perfectly acceptable quorum.  If the 9 members who have been nominated in terms of the provisions contained in the 17th Amendment had been appointed forthwith, we can see no reason why the CC could then not have come to perform its constitutional functions in a legitimate manner, pending the appointment of the 10th member.  The red herring drawn across the trail, saying that the CC cannot function without all 10 members being appointed and present, is, in CIMOGG’s view, an argument put forward either with blinkers on or with questionable motives to frustrate the highly commendable intent with which the 17th Amendment was passed by Parliament with an overwhelming vote in its favour in October 2001.

Those who are sincerely, if mistakenly, of the view that all 10 members of the CC need to be appointed for it to function constitutionally should, in that event, be equally mindful of upholding the Constitution by refraining from encouraging or acting to appoint members to the Public Service Commission (PSC), the National Police Commission (NPC) or any of the other Commissions covered by the 17th Amendment, in the absence of the 10-member CC.

As for those who insist that the Inspector-General of Police (IGP) for the time being should be a member of the NPC, they need to be reminded that the present holder of that post has been faulted and penalised by the Supreme Court in a recent, high-profile Fundamental Rights case.  Whilst the implications of the Supreme Court verdict are very worrying and need separate study and comment, it is imperative that one does not forget that the reason for the creation of an independent NPC was to make it distinctly independent of the Police Department, inclusive of the IGP, whose shortcomings, if any, could be dealt with administratively without the aggrieved persons having to file cumbersome and costly Fundamental Rights applications in the Courts.

Tinkering with the Constitution or circumventing it with specious argumentation in the belief that one can gain an advantage over all the other political parties is not a very bright thing to do.  For example, the very Constitution that President Jayawardene foisted on the people of Sri Lanka in the expectation that it would lead to the Afolding up the electoral map of Sri Lanka, to the advantage of his party, has been used since 1994 by his opponents to thwart the very objectives that he was determined to attain.  Governments must realise that any immoral precedent they set could one day be used against them when they are relegated to the Opposition, as is bound to happen, perhaps sooner than one thinks likely.

A particularly unhappy aspect of the appointments which have been reported to have been made to the PSC and the NPC is that many highly respected persons who are eager to serve the country are being placed in the invidious position of providing unwitting complicity to contravene the Constitution, perchance because of their unfamiliarity with the detailed provisions of the 17th Amendment.  CIMOGG wonders whether they, being distinguished persons of high integrity, would otherwise have agreed to accept these positions.

Apr 10


The torments suffered by citizens who find themselves drawn into litigation in Sri Lanka do not require embroidered description.  Most readers would have had occasion to experience the tribulations of dealing not only with the opposing party but with the many infirmities of the legal system itself.  Consequently, it was greatly encouraging to read recently in the press that Their Lordships the Chief Justice and the President of the Court of Appeal have, once again, drawn the attention of the government regarding a few of the most urgent steps it needs to take if the citizens of this country are not to be driven by desperation to adopt extra-legal methods to solve their disputes with each other.  Their Lordships comments were made at the recent Annual Convocation of the Bar Association of Sri Lanka (BASL).

It has been reiterated that the backlog of cases in the Court of Appeal is now over 12,000, and growing steadily.  The decentralisation of the Court of Appeal, so that there is one, say, in each of the provinces would go a long way to ensure that verdicts are given in months rather than years, not to mention the enormous reduction in unnecessary travel, ancillary expenses and distress for litigants.  It would also encourage capable lawyers to remain in the provinces with a prospect of earning a good income without having to migrate to Colombo.  We, therefore, wholeheartedly support Their Lordships endeavours in this direction and call upon the government not to prevaricate on this issue but to take speedy action to ease the sufferings of the thousands of citizens who daily undergo the tortures of dealing with an under-funded judiciary.

If the President would give serious consideration to the recommendations made repeatedly by many political experts and CIMOGG to reduce the number of Ministers to around 20, there would be enough money saved to set up the critically-necessary provincial Courts of Appeal.  It is not that we are unaware that promotion to ministerial rank is one of the legal incentives (Abribes probably being too strong a term) given to many MPs to remain loyal to the government.  What we urge is that there should be a conscious and sustained effort at least from now onwards to reduce the number of ministries as suitable opportunities arise, eg. when Ministers break the law, fail to observe financial regulations or default on the programmes set for them by the Cabinet.  In the interim, one of the most practical steps that the government could take would be to strengthen the Auditor-General’s Department and make it autonomous so that we do not have to be faced with multi-billion rupee VAT scams, which, if they had been prevented, could easily have funded the additional Courts of Appeal and the proposed increase in the number of judges, as well as the cost of expanding the Auditor-General’s Department.

The then President-Elect of the BASL (now President) had on the same stage expressed great concern regarding the need for lawyers to maintain high ethical standards and not to create divisions within the BASL on political lines.  CIMOGG heartily echoes these sentiments but should also like to see that these proposed standards lead its members to adopt a more human touch in their dealings with clients.  In this connection, it is pertinent to mention that one of the questions that CIMOGG is asked frequently is whether there is any moral justification for lawyers to collect more than a nominal fee for attendance only where cases are postponed for various reasons, through no fault of either of the parties to the litigation.  Of course, it is appreciated that where one party deliberately uses delaying tactics, it is not unjust for that party to be compelled to pay the opposing party’s costs but this alone need not preclude a rigorous review of current practices.  The excuse given, that lawyers cannot sue for their fees, is for all practical purposes a convenient fiction because they generally make sure of collecting their fees before each consultation and court sitting.  It is only if the client is well known as a good paymaster that lawyers will wait for their fees to be paid later.

Finally, with the greatest respect to our Lordships, we should like to put it to them that precept is best underpinned by example and that, therefore, the judiciary should take the lead by adopting the BANGALORE PRINCIPLES OF JUDICIAL CONDUCT and thereby inspire the lawyers to follow suit with their own Code of Conduct for which we are sure there must be numerous readymade prototypes available in countries which are more socially advanced.