A senior lawyer who has appeared in many issues of public interest in recent years is now facing the threat of being removed from the roll as a lawyer due to a fundamental rights application he filed raising questions regarding the constitutionality of some issues relating to the judiciary that he pleaded adversely affects his capacity to function as required by his profession as a lawyer.
Elmore Marsh Perera (73 years of age) was a senior civil servant holding the posts of Surveyor General of Sri Lanka and Additional Director, Training & Evaluation of the Civil Service. Later he became a lawyer and took a great interest in public interest issues and in safeguarding the independence of the judiciary and the integrity of the legal profession. The action that has been initiated against Mr. Perera has shocked lawyers as well as the public. A people’s forum has been formed by a number of persons to ensure justice for Mr. Perera as well as to defend the independence of the judiciary and the rights of the people. This forum, in a statement says “he is a lawyer who did not charge anything for appearing on legal issues on justice. Such an honourable person is now facing a threat of destruction of his dedicated practice.”
The story about this case is as follows: Mr. Perera filed a fundamental rights application bearing number SCFR 108/2006 stating that his fundament right to practice as a lawyer has been infringed for the following reasons:
a. Two members of the Judicial Service Commission (JSC) have resigned quoting reasons of conscience and no inquiry has been initiated to find the reasons for these resignations.
b. In the past there has been precedence that when the Chief Justice of the Supreme Court is out of the country the next senior most judge of the court is appointed as the acting Chief Justice. However, when recently the Chief Justice was out of the country a far more junior judge of the Supreme Court was appointed as the acting Chief Justice.
c. Two judges have been acting as members of the JSC as if appointed as members of the Commission while in fact no appointments as required by the Constitution have been made.
This petition has been filed on the 9th March by Mr. Perera citing himself as the petitioner. It came up on 21st March for supporting in open court before three judges of the Supreme Court. One of the judges was among the two people who were functioning as members of the JSC although not constitutionally appointed for that post.
Mr. Perera objected to this judge being a part of the bench in a case where he was an interested party to the matters to be adjudicated. However, when this objection was taken the presiding judge replied that the particular judge that was referred to was present on the bench only as a passive member and that it would be the other two judges who would decide the case. At this stage the presiding judge overruled the objection. Mr. Perera made a further objection to the presiding judge being part of the panel hearing this case and this objection was also overruled. Thirdly, he made another objection to a two judge bench hearing this case as the case raised matters of grave constitutional importance. This objection was accepted by the court and the case was adjourned to the 31st March for fixing the case before a larger bench.
Subsequently Mr. Perera came to know of two newspaper reports which mentioned comments of the presiding judge to the effect that he, as the lawyer, had made remarks in court that were rude and that this demonstrated the extent to which the courts in the country has degenerated. As he was totally unaware of any such remark by the judge he believed that the journalists misinformed themselves. On the next date (31st March) of the case he brought to the notice of presiding judge the remarks that were attributed to the court and printed in the said newspapers. At this stage the presiding judge confirmed that such remarks had been made and in fact written in the case record.
Subsequently Mr. Perera heard that a rule had been issued by the Supreme Court in which he was asked to show cause as to why he should not be removed from the roll of being an Attorney-at-Law in Sri Lanka. Although he had learned about this issuing of this rule from some sources he did not receive any official notice of it or the date on which this matter is to be called before the Supreme Court. Fearing that the rule may be issued before he received notice he went to court on his own on the 2nd October and came forward when the case was called. The court was presided over by the Chief Justice Sarath N. Silva. Mr. Perera informed the court that he had not received any notice about the matter and that he was unaware of the content of the matter before court. At this stage the Chief Justice handed over the case docket bearing number SC Rule 1/2006 and asked Mr. Perera to read it.
Upon reading from the docket Mr. Perera found that there was no complainant mentioned in the Rule. He further discovered that the grounds on which he is asked to show cause were as follows:
WHEREAS you filed S.C. Application No.108/2006 (FIR) describing yourself as a practicing Attorney-at-Law of this Court and supported the application for Leave to Proceed on 31.03.2006
AND WHEREAS in your submission you:
1. Continued to read each and every averment in the Petition, despite a specific given that the Bench was in possession of the contents of the Petition and that you should not unduly take the time of Court by reading each and every paragraph but that you should make your submissions relating to the specific matters of law and fact, relevant to the in issue. Despite the said direction you in disobedience and defiance of said direction continued to read the said paragraphs in the Petition in disobedience of the specific orders of Court;
2. That in the course of the said proceedings when the Bench required you to address Court on certain issues for the purpose of clarification of questions of law that arose for consideration, you rudely and insolently refused to answer any questions despite repeated requests and you contemptuously told Their Lordships that they could look it up themselves, if they so desired.
3. That you used intemperate language and made gesticulations to bring the proceedings of Court into ridicule and contempt. That thereby, you engaged in conduct prejudicial to the administration of justice; failed to assist in the proper administration of justice and/or permitted your personal feelings to influence your conduct before Court in breach of Rules 50 and 54 of the Supreme Court (Conduct and Etiquette for Attorneys-at-Law) Rules 1988 amounting to misconduct and malpractice as an Attorney-at-Law.
On the matters mentioned above he is asked to show cause as to why action should not be taken against him under section 42 (2) of the Judicature Act (Act No. 2 of 1978) which reads as follows:
Every person admitted and enrolled as an Attorney-at-Law who shall be guilty of any deceit, malpractice, crime or offense may be suspended from practice or removed from office by any three judges of the Supreme Court sitting together.
The Asian Human Rights Commission finds it completely incomprehensible as to why a show cause notice for a rule should be issued on the grounds mentioned above against a lawyer. Clearly the matters mentioned as the grounds on which Mr. Perera is asked to show cause do not fall within section 42 (2) of the Judicature Act. Trying to extend this section of the Act in such a frivolous and elastic manner will not only have a chilling effect on the legal profession but also make it impossible for the rational practice of law. None of the matters mentioned in this case fall within the meaning of the definitions of deceit, malpractice or crime and offense.
A judge/lawyer relationship is not one of the feudal master/servant relationships. It is one in which a lawyer participates to represent his clients on the basis of rights and privileges which are well established globally and which have remained part of the tradition of the relationship of bar and the bench in Sri Lanka. A lawyer is not expected to blindly obey directions or orders given by a judge while he is making his representations to court on behalf of clients. The lawyer is at liberty to reply to the court of his disagreements on the courts’ questions in dealing with his submissions. He cannot perform his function as a professional without the liberty to make his presentation in the manner he chooses best so long as he performs such duties within the usual norms of rational discourse. The question of disobedience as raised as the very first ground does not stand to reason or the best practices of the tradition of the profession. Lawyers do not owe obedience to court but only mutual respect on the basis of recognition of the dignity of the bar as well as the bench.
The second ground is equally irrational as the lawyer may point to relevant sections of a petition if the questions raised by the court are in fact answered in those sections of the petition. The answering of questions by a lawyer does not follow like a question and answer session in a contest or as it happens in cross examination. It is a lawyer’s right to choose the manner in which he answers the questions from court. To treat a lawyer in the manner some feudal teachers treat primary school students is against the very nature of a learned profession where judges are expected to conduct the proceedings in higher traditions of rational discourse.
The third ground on which the show-cause notice is given is completely vague and will not constitute a proper charge even in a criminal case or a labour dispute. The lawyer is not shown as to what language amounted to contempt of court and what the gesticulations constituted misconduct and malpractice were. It is a basic principle that anyone who is charged on any matter should be given the details which in fact constitute what amounted to misconduct and malpractice. The proceedings of the 22nd March referred to above do not also show any detailing of facts on which this third allegation is based.
The Asian Human Rights Commission further points out that Supreme Court bench presided over by Sarath N. Silva the Chief Justice sentenced Tony Fernando, a lay litigant, for one year’s rigorous imprisonment for talking loudly in answering to the court. The United Nations Human Rights Committee held this sentence to be a violation of the International Covenant on Civil and Political Rights (Communication No. 1189/2003, please see http://www.alrc.net/doc/mainfile.php/un_cases/351/ ) and further stated that Sri Lanka should take action to prevent a future happening of similar nature. Now, the attack on the right of representation in fair and rational manner has been extended to a rule against a well known lawyer.
Many human rights groups have constantly pointed out the atmosphere of intimidation that has begun to prevail in the Supreme Court in recent years. Many statements from human rights organisations including the AHRC have pointed to the refusal of senior lawyers to accept briefs to appear before the Supreme Court due to such intimidation particularly by the Chief Justice.
Mr. Elmo Perera kept on appearing before this court despite of the many adverse judgments he had received on his applications which were most of the time matters relating to public interest. The matters raised in his fundamental rights application regarding the JSC were matters of constitutional importance and issues that the nation is very much interested in. Removing him from the roll of lawyers would prevent him from pursuing this fundamental rights application and that case from coming up before a larger bench can be prevented in that manner.
In the defense of human rights courts are the last resort in a democracy. However, in Sri Lanka this last resort has been lost to a very great degree in recent years. The deliberate attempt to close the doors of justice is taking place in the country when in all quarters of the state corruption is increasing in an unprecedented manner. Stilling and freezing the voices of people who air public interests including human rights groups and lawyers has proceeded to a great degree in the country.
The transformation of court of justice into courts of vengeance is frightening. We call upon everyone to defend the rights of this lawyer and to treat this as a matter of the highest social importance. If this voice is also stilled what may happen is reflected in the well known words of Pastor Martin Niemoller, “When the Nazis came for the communists, I remained silent; I was not a communist. When they locked up the social democrats, I remained silent; I was not a social democrat. When they came for the trade unionists, I did not speak out; I was not a trade unionist. When they came for me, there was no one left to speak out.”
