Constitutional Reforms in Sri Lanka must prohibit Members of Parliament from practicing law

Parliament of Sri Lanka

The case for good governance and the current hurry to pass constitutional reforms cannot omit a very important clause which is the need to prohibit lawyer-politicians from practicing law and influencing decisions as well as making use of parliamentary privileges when they get cornered. Given the conflict of interest it is imperative that all those claiming to bring good governance include a clause that prohibits MPs from practising law and should be included into the code of ethics for all MPs. In turn the Bar Association too must prohibit lawyers from practicing law after being elected as a MP/Deputy MP (politician) and allow them to do so after retiring from politics.

How ethical is it for lawyers who contest and become elected as representatives of the people and who are looked after by the State and the tax payer to take legal cases for which a fee is charged?

Public sector employees are not allowed to indulge in private employment while being paid by the state, if so why should MPs/Deputy MPs while taking salaries from the State charge a fee for private practice? Should this logic not apply to Parliamentarians as well? Are they not elected by the people to act in the interest of the public but when they take up individual cases for a fee or even on a pro bono basis does this not conflict with his job description under duties to the public?

Unlike state employees MPs not only draw state salaries, they enjoy full state privileges and moreover they are directly linked to the legislature and the judiciary and when they take private cases some of which may be directly linked to legislature or judiciary is this not a direct conflict of interest. Why should we be reliant on the provision to recuse themselves from cases where there is conflict of interest when there is also the likelihood that they will not. Did we not expect Navi Pillai to recuse herself from being judge of the Sri Lankan issue on grounds of her Tamil heritage but she did not despite appeals made.

Is it not possible for a Government or Opposition MP to use his political influence while engaging in legal practice and does he not have better opportunity to access classified information not made available to ordinary lawyers and when cornered do they not always escape by making use of their parliamentary privileges? Is this ethical governance being preached?

Why did good governance activists not object when previously the present Justice Minister while an Opposition MP was elected as President of the Bar Association and was able to influence lawyers while he also represented the biggest swindler allegedly responsible for the deaths of over 50 depositors? Why was this conflict of interest not opposed?

An apex body as the Bar Association of Sri Lanka functioning more or less like a Union for lawyers never objected to its President being an Opposition MP. They being lawyers should have been the first to object citing conflict of interest. In fact he was elected as President which questions the levels of integrity of the lawyers that voted for a politician to be the Bar Association President.

It is morally and ethically incorrect for a politician President of the Bar Association to take money from both his ‘client’ and a salary from the Public purse for representing the People. It is an embarrassment to the Latimer House Principles of good governance and accountability for appearing for a ‘client’ who has swindled the public and to add to injury he is now the Justice Minister!

This calls to mind the example of Italy where former Italian PM Silvio Berlusconi’s attorneys were members of Parliament and making laws to protect the PM.

The example of the Law College entrance examples shows that the present Justice Minister wearing the cap of politician despite being the then Bar Association President chose not to issue a statement against the malpractice that led to an unprecedented number of a minority community securing top slots and gain over 100 seats to enter the law college. The people were led to believe that because of the political repercussions of objecting to the malpractice the Bar Association President chose to keep mum.

Similarly, the present Justice Minister and former Bar Association President as then Opposition Member also chose to keep silent when David Cameron humiliated the nation and it’s President in Sri Lanka flouting diplomacy and State decorum. Here again political points took preference over defending the nation and its elected leader. Whatever personal dislikes people have for a President, when a foreigner ridicules and humiliates the nation the people and officials are expected to rally and defend both.

We cannot place trust on a wafer thin possibility that MPs will uphold conduct and put their public interests above their self-interests. This is why it is essential for the law to explicitly ban MPs from practicing law.

When people who cannot contest an election are brought in as legislatures from the backdoor on the national list can the public expect them to have any decency of ethics to stop practicing law and earning private fees?

We should follow good governance examples

  • Section 14, Article VI of Philippine constitution states that No Senator or Member of the House of Representatives may personally appear as a counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies.
  • Law licences of Barak and Michelle Obama became automatically after he became President.
  • In Australia Members of both Houses must report their pecuniary interests within 28 days of taking office including spouses/dependent children, shareholdings in public and private companies, partnerships, family and business trusts, real estate, savings, sources of substantial income, savings, gifts, sponsored travel.
  • In Japan, its Representatives in both Houses have to keep private affairs separate from public affairs and Japan has a long list of prohibited benefits.
  • In Sri Lanka despite the official requirement to submit asset declarations how man parliamentarians actually do so – most of them file limited assets without divulging their other interests especially those they have conveniently transferred to family members – spouse, children etc?

Lets not forget that Transparency International whose head the present Government has selected to probe all opposition malpractices declared in 2001 that Sri Lanka’s judiciary and police were one of the most corrupt in South Asia with 100% respondents claiming they had to pay bribes to the judiciary.

Good governance and democratic values as well as rule of law becomes a joke when all the regulations/rules/ethics etc are applicable only to the general public and both Government and Opposition politicians flout these with immunity?

No amount of laws, legislations, bills can change a system of culture unless all practitioners and enforcers as well as the public indulge in corruption at whatever levels.

Definitely politicians should have a background of law, its help them in drafting legislations. However, it is essential that once a lawyer enters politics and becomes elected as a MP he is bound by principles of serving the public of the nation and thus he should not practice law (for a fee or even for free). Legal skills must be used to protect the interests of the nation not for personal gain or glory and certainly not for political mileage.

Shenali D Waduge

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