Depoliticizing the Bar Association of Sri Lanka
By Shenali Waduge
The logic of declaring anything “independent” must be based on an unwavering commitment to unbiased, devoid of discrimination and ethical judgment in all cases whether they are associated with the 3 pillars of governance or in private/public sector as well as in the daily affairs personal or otherwise of the public. It has become a trend to evade the main theme of any focus by turning issues into a political force thereby attracting an unwarranted number of internal and external players making solutions all the more difficult to reach and distancing any opportunity for rational thinking and action. This politicizing of issues needs to surely stop for a country to progress. The discussion raises the key question of how “independent” the Bar Association of Sri Lanka is and how “politicized” it has got. In all matters of integrity conscience and action must work in cohesion.
The recent turn of events exposes the facts that there are matters that need to be addressed before anyone can exercise the act of pointing fingers. It was in 2001 that the Transparency International survey declared Sri Lanka’s judiciary and police one of the most corrupt in South Asia with 100% respondents claiming that they had to pay bribes to the judiciary. A decade on has that scenario changed or does it remain the same or has it reached far worse conditions?
No amount of laws, legislations, bills or what not can change a system of culture where all practitioners and enforcers including the public are corrupt or indulge in some form of corruption. There is hardly a difference in the guilt of a “taker” and a “giver”. The situation is made worse when apex bodies function in ways that dilute the aspired justice.
The Bar Association of Sri Lanka has chosen and elected a politician as its President. While it is the right of any attorney to stand for election it questions why no one considers some prima facie facts.
· How “independent” is a Bar Association when it elects a Politician as its President? What level of “independence” can this President/Politician exactly deliver and whose priority does he “work” towards – those that pay him (his clients) or those he takes a salary from (the Public)?
· If the President of the Bar Association is a practicing lawyer who is paid by clients to act in the best interest of the client what is his obligation as an MP towards the public? As members of the public do we know which hat he is wearing and when and how far is he able to act in fairness to the public by virtue of his duty as a Parliamentarian while also satisfying his client who is paying him exorbitant fees to protect the clients interest?
· How “independent” is a Bar Association when its elected President is not only drawing a salary including perks/privileges given by the State at taxpayers cost while also functioning as a practicing lawyer charging fees for his counsel?
· How “independent” is a Bar Association when that President is not only a member of the Main Opposition political party whose job is to oppose the Government and who is also entitled to use his parliamentary privileges as immunity in all that he says inside Parliament?
· Parliamentary Privileges act declares that “No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of anything which he may have said in Parliament or by reason of any matter or thing which he may have brought before Parliament by petition, bill, resolution, motion or otherwise” – http://www.parliament.lk/
· There is a strong case of conflict of interest when the President of the Bar Association is a member of the legal team of the Golden Key case where members of the public have filed a case against it. The same legal team now represents the chief justice. This questions where the interest of the Bar Association President lies and where his interest should be as a priority?
· The President of the Bar Association has also used that parliamentary privilege by challenging a decision taken by the Speaker and filing a case by the Bar Association of Sri Lanka against the Parliamentary Select Committee that is probing impeachment against the Chief Justice.
· This instance calls to mind the situation in Italy where Silvio Berlusconi’s attorneys are members of parliament. What is the situation when defense lawyers/parliamentarians work towards making laws that protect their Premier (client)?
As a politician it goes without saying that the primary interest is to build a support base of potential voters to secure electoral wins. It is no secret that while those that end up winning elections from the rural Sinhala Buddhist vote base, the next strategy is to always flirt with the minority votes totally neglecting the voters that brought them into power.
The judiciary at present is plagued with a suite of calamities, made worse has been the recent results of the law college entrance exam where it is alleged that some malpractice has taken place which has resulted in an unprecedented number of a minority race securing the top slots and gaining over 100 seats to enter the law college. If there is public opinion coupled with aggrieved students as well as young lawyers objecting to the results, why is the Bar Association especially its President silent not having released a statement in this regard? Given that there are objections the rightful thing to do is to call for an independent inquiry while suspending admissions given that there may be a need to redo the paper if it has been leaked?
Since the exam results concerns a minority, is the Bar Association President silent because of his interest in securing his political role or is there other reasons? We do not know because he is wearing too many hats all conflicting with one another at various times given the sensitivity of the positions held. The investigation team should be able to divulge the truth. It is the impartiality that we expect from the Bar Association especially that of its President.
Then there is the revelation by 2 former judges at the Annual General Meeting of the Judicial Service Association on 22 December 2012 that must have certainly piqued all the proud legal fraternity present. Their speeches only confirmed what many amongst the public already accuse the judiciary of and whilst the executive and legislature have been central to most of the public condemnation in the past it appears all is not fine in the annals of the Judiciary as well. Sleeping on the job apart when an innocent man is sentenced to prison by a judge simply to punish the lawyer appearing for him just does not fit the profile of a practice that professes to be “independent” and upholding justice!
Sending a man to prison because the judge did not like the lawyer representing him is a major offence committed by this judge – Who is he, why was he not punished or exposed and is he still giving similar judgments and why has he deserved a promotion? Has this prisoner been released or is he still languishing in prison, what about the compensation he should deserve for being sent to prison for no reason, how unfair to use the plight as an evening speech example when the judicial system should have addressed this miscarriage of justice immediately – where is the justice from the legal fraternity shouting for justice?
Therefore if there is misconduct of justice taking place in Sri Lanka’s judiciary and its services, should its house not be cleansed before it points fingers?
The President of the Bar Association, who is also a member of a political party and an opposition MP is not the only parliamentarian practicing law. There are many in both government and opposition and it does question their ethics in delivering their services.
People do wonder if it is because of the Justice Minister that the animal welfare bill, the anti-conversion bill remains in embryo and is there also a reason why the Law Commission website is not functioning? Ideally no politician should take up positions that would give rise to conflicts of interest – as “learned” men standing for elections they should have a conscience to know the adverse effects.
In the Philippines Section 14, Article VI of its constitution clearly says 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”. It is not difficult to see how conflicts of interests and bad practices can result when those having access to information not privy to others hold portfolios that leave little room for ethics or good governance.
It is the right of anyone to stand for office but 11,000 attorneys of the Bar Association of Sri Lanka should have known better than us the amount of conflict of interest likely to rise in electing a politician as its head.
Having said that it is left for that person to realize himself before being pointed of the likely conflicts of interest and to choose his priority and opt to bow out of one gracefully for the chemistry of a politician, as a practicing lawyer and holding the portfolio of the President of the Bar Association does not work too well and goes against every norm of democracy that even the Western critics should have noticed and should have publicly opposed and we wonder again why no one has pointed this out earlier!
All these spell the need for a comprehensive inquiry of the judiciary and legal profession coupled with the need for a national media commission that would eventually help drive proper governance. When these vehicles start performing as they should the other organs automatically will fall in line and the people will be better informed not to elect corrupt politicians.
The “independence of the judiciary” happens when all those in the judiciary function without bias, without malice, without political agendas. But how many of our leaders exactly follow such practices is again questionable – those that we know who have neither conscience nor integrity have no moral right to be pointing fingers.
Simply put the Bar Association of Sri Lanka is nothing but a politicized body if it continues to elect practicing politicians as its Presidents – the conflicts of interests are clearly visible and nothing anyone can deny. Assurance of personal behaviors/actions cannot warrant the leadership mantle of an apex body as the Sri Lanka Bar Association to be held by a politician – whether he is in Government or Opposition. It is detrimental to the vision/mission of that body to have a politician cum practicing lawyer holding fort.
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A brilliant analysis by Shenali.
The Bar association is just anther professional “Trade Union” flexing its muscles when people power vested in Parliament is being exercised to weed out corruption in the judiciary.
The Bar Association’s actions are convoluted where representation of interests are in coflict quite rightly as Shenali writes.
I quote below a Daily Mirror report. I fear LTTE taking over the BASL:
“Breaking away from the tradition of running for two terms, the Bar Association of Sri Lanka (BASL) President Wijedasa Rajapakshe has decided to step down from his post and make way for the election of another member to the post.
Mr. Rajapakshe as incumbent president of the BASL – the policy making body comprising more than 11,000 lawyers in the country has decided not to continue for a second term, a practice followed by the past presidents. His first term ends in February. His decision has been confirmed by several officers in the legal fraternity. Senior attorney and President’s Counsel Geoff Alagaratnam has decided to contest for the post that will be vacant when Mr. Rajapakshe steps down.
“I decided to contest as it is important to maintain the independence and continuity of the BASL,” Mr. Alagaratnam told Daily Mirror.
He said he decided to contest since he had reliably come to know that Mr. Rajapakshe was not going to continue for the second term.
“I will not come forward if Mr. Rajapakshe is continuing,” Mr. Alagaratnam said.
In the wake of moves to impeach Chief Justice Shirani Bandaranayake, almost all the members of the BASL launched a major protest. The BASL summoned two Special General Meetings – a rare occurrence –with all members participating and passed several crucial resolutions.
On November 10, the BASL unanimously passed eight resolutions and expressed grave concern over the impeachment motion against the Chief Justice and urged fair play. Later on December 15 at another Special General Meeting, the Association resolved unanimously to request President Mahinda Rajapaksa to reconsider the impeachment process against the CJ and agreed not to welcome a new CJ if appointed. Both Special General Meetings were held amid fiery verbal duels between those supporting and opposing the impeachment motion.”
Shenali, I love your brilliant analytical articles and exposes. I print them out and collect them. One day you need to bring out a book of your collective writings. Please keep on writing. You deserve a top position in the govt, perhaps representing SL in the UN. We need able people like you to steer the country forward in the path of justice and fairness.
Foreign influence through NGOs and INGOs have gained the upperhand to ruin our country to make it subservient to US and imperial West ambitions and servitude. When are we going to be truly free of their interference? I hope Hon President orders a thorough investigation into the workings of these NGOs and INGOs and enforces laws to govern and moderate them to prevent them from inimical acts against our Motherland.
How can a elected MP become the President of the Bar association, no politicians should get the top post in this association because they will never be independent and could be easily influenced.
I agree with the genuine concerns by Chumpa in Blog 2. The sinhala speaking citizens are giving up on key posts that are required to drive our motherland down a Sihala Buddhist path. I fear key positions including BASL and the judiciary being occupied by tamil speaking citizens whose allegiance we are not sure of. The key lawyers for the CJ is a tamil speking citizen; now the BASL is falling into the hands of another tamil speking citizen. The courts hearing the CJ’s cases are all manned by non-sinhala speaking judges. Are we losing control and leadership to people of whom we do not know much about?
I smell a rat. Is this a conspiracy by TNA and ilk to fill top positions with nationalist Tamils as they have overun Colombo and displaced the Sinhalese?
Not only a rat Nicholas, but a stink. The judiciary appears to be in the hands of the tamil speaking citizenry. The CJ rode rode to Parliament sitting next to a tamil speaking citizen of dubious repute. That’s where we are Nicholas, in the next stage of the war.
These guys will wriggle in anywhere and cease power by stealth. They all obey the now deceased Sun God; they start their struggle again in the Northern University which has been effectively dealt with by the Defence Secretary and his watchful officers.
The bullets that were planted in WR’s parapet are likely to have come from LTT rump roamimng the city freely thanks to the magnanimity of the sinhala speaking people. Those stray bullets appear to have scared WR off. What a pity.
We, the sinhala buddhists must preserve the peace we won through the valiant efforts of the rajapaksa family.