Sri Lanka Bar Association must critically evaluate ‘Rule of Law’ of USA and the West

Bar Association of Sri Lanka

– by Shenali D Waduge –

It was recently announced that the Sri Lanka Bar Association had signed a MOU with the USA Government to promote ‘Rule of Law’. The announcement immediately leads us to wonder exactly what type of rule of law does the US intend to promote in Sri Lanka and whether Sri Lanka’s legal fraternity are ignorant of the rules of law that the US ignores? As learned men and respected members of Sri Lankan society it behoves the Bar Association to set an example for all that justice and equality upholds. Yet, in entering into a MOU with a nation from whom Sri Lanka has nothing to learn in terms of ‘rule of law’ we are only appalled that our legal fraternity wish to even consider the poor examples of war mongering and massive human rights violations committed by the US all over the world. We think it time that the members of the Bar Association realize that their role alongside their qualifications and oath of loyalty is to the National Constitution and country to protect the sovereignty of Sri Lanka and not compromise it.

Exactly what type of Rule of Law does the USA promote?

We are talking about a country that completely ignores international laws specified under the auspices of the UN, a country that invades nations fabricating lies and spreading these lies across the mass media that is virtually monopolised by them. Are we to learn ‘rule of law’ from a country that has legalized ‘strip searches’ even for a minor offence as forgetting one’s driving license? Are we to learn ‘rule of law’ from a country that drafts Resolutions when it drops DU and cluster bombs and orders its troops to ‘shoot at everything that moves’ and apply ‘360 degree rotational fire’?

What ‘rule of law’ are we expecting to learn and imbibe from a country that conducts itself like a rogue nation and big bully in the international arena, that has scant respect for international law and international institutions except to use them as tools to achieve ulterior ends?, that is impervious to world public opinion, that engineers scenarios, that misuses, abuses and manipulates even religion and sends bogus ‘missionaries’ to function as regime change operatives? What rule of law can we learn from a country that funds private organizations to use their local operatives to penetrate deep into societies of nations and brainwash them into going against their own country and leaders so as to build the scenario for regime change and installation of puppet leaders ever ready to compromise on the fundamental interests of their nation? To this immoral exercise knowing through enough of examples of what the USA is capable of doing and has done to nations, are lawyers of Sri Lanka who we believe have the intelligence to understand far more than the rest of us and not dim – witted willing to be deceived by the USA State Dept., CIA and their numerous manifestations in the form of various Asian Aid Agencies and Foundations?

This very nation that has murdered national leaders and plundered nations over the last 100 years or more has even made itself immune from all war crimes when the UN announced in 2002 that it would be exempting US troops from investigations into war crimes by the ICC.

The MOU signed between the Bar Association of Sri Lanka and USAID is to sponsor a program under an initiative titled “Civil Society Initiatives to Support the Rule of Law’.

We are told that the 3 year program would strengthen ties with the US State Bar Association. There is no single State Bar Association in the US – the different States of the US have their own Bars – we hope that the SL Bar Association realizes this differentiation.

We hope too that the SL Bar Association and its lawyer members take note of Russia’s closing down of USAID classifying it as an agency working towards regime change and de-stabilization of Russia.

Can ‘Rule of Law’ and trappings of the Police State in USA be reconciled?

United States of America, which proclaims itself the “land of freedom”, has the most dishonest, dangerous and crooked legal system of any developed nation. The corruption of the USA legal system is well-known, but also well-hidden, by the news services of America’s corporate-owned media. US prisons holds over 2million prisoners. More than 1 out of every 150 people in America – are behind bars. USA is now imprisoning about 1 out of every 36 people in its black population. Americans and the American government, continually criticize the legal systems and so-called “political” legal proceedings in other countries yet the proportion of prisoners is 30 times higher in the USA than in China. It is estimated that America has at least 100,000 completely innocent people in jail. Conditions are brutal in USA jails; rape and beatings are common, and there is little help for abused inmates.  Often, foreign citizens have been sentenced to death, while the USA has not even bothered to notify the foreign government that their citizens were arrested. The world press has documented clear violations of human and legal rights by America in its overseas jails, such as the infamous situations in Guantanamo and occupied Iraq and Afghanistan, and the even more secret network of prisons in places like Diego Garcia or on board American ships.

America will play the song about “just a few bad apples in the barrel” whenever an abuse scandal gets exposed, either domestically or abroad, but the cover-up of such abuse is more the routine response.

America’s legal system has become largely a tool of government terror, and of bribery for the rich and the powerful. America’s lawyers are controlled by the judges, and don’t really work for you – that’s why they sell you out to the government, or to the big companies that pay bribes. American lawyers are directly under the thumb of the judges and the government, and must submit to the culture of bribery and perversion of justice, or else face terrifying ordeals. Lawyers who try to fight the system can find themselves not only dis-barred, but also criminally charged and jailed, and no other lawyer will help them.

America’s 1million lawyers are all subservient to the judges in a culture of bribery and fraud and miscarriage of justice. Lawyers have to make the judge happy, and the judge needs to make the Government happy and the Government has to make the corporates happy – that is how America runs.

Is this the rule of law that the SL Bar Association hopes to learn via USAID and entrench in Sri Lanka?

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. 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. An apex body such as the Bar Association made its own serious blunder a few years back in electing a card carrying politician cum Member of Parliament (MP) as its President. When an ‘independent’ Bar Association elects a MP cum Politician as its President where is the ‘independence’ that the public are entitled to expect from a leading professional organization?

Conflicts of interest when MPs appear as Counsel in Courts of law

How moral and ethical is it when a Politician President of the Bar Association takes money from both his ‘client’ and a salary from the Public Purse in his alter ego as Member of Parliament ? Was it not because of this key fact that this politician as former President of BASL represented a high profile client who had swindled thousands of people, thirty of whom had even committed suicide to date while also taking a salary from the Public and enjoying perks and privileges as a MP all paid for by the citizens of Sri Lanka while charging exorbitant fees from this private client to ensure he is not brought to justice for swindling the public and does not go behind bars for the crimes he had committed (Golden Key case). When anyone is serving as a Member of Parliament his or her primary duty, lawyer or no lawyer, is to serve the interests of the larger public and not the private interests of wealthy crooked clients, particularly when there is a conflict of interests between the two?

What we saw in the recent past was a flagrant violation of this fundamental ethical principle that binds all members of parliament, by this very MP cum lawyer who now without any qualms of conscience tries to embarrass the Govt. of Sri Lanka on Commonwealth (Latimer House) Principles on good governance, the accountability of and the relationship between the three branches of Government.

So what was the rule of law that the Sri Lanka Bar Association and its member lawyers upholding at that time when they watched the former President function as both MP and lawyer in a clear case of conflict of interest, having politicized the Bar Association to its very depths through his partisan politics? This was exactly what happened in Italy when the former Italian Prime Minister Silvio Berlusconi’s attorneys were members of parliament and were making laws to protect the Premier.

If the Bar Association is truly concerned about the rule of law what they should do as a first step is to bring forward a motion in the Bar Association that no Member of Parliament should practice law or defend clients in court room because their capacity to influence the Administration of Justice, Judges and even Parliament to subvert the course of justice is exceedingly high. They are not on a level playing field with other fellow lawyers that lack clout and political influence.  He can either practice law or remain as a MP. But not both. These Rules restricting MPs from practicing law are in force in the Philippines, Australia, and several other Commonwealth countries based on very good public policy reasons.

Malpractice on entry to the Law College

The legal profession of Sri Lanka was also in the news in the malpractice following the results of the law college entrance exam where mischief prevailed to enable an unprecedented number of a minority community to secure top slots and gain over 100 seats to enter the law college. Apart from the public discontent and aggrieved students protesting neither the then President of the Bar Association or the membership made a single statement in this regard nor even demanded an independent inquiry or suspension of admissions. Naturally the public came to the conclusion that the Bar Association President kept mum because the issue dealt with a minority race and both he and the party that he was representing in Parliament relied on minority votes for their political survival.

In the same vein when the Minister of Justice and lawyer himself is the head of a mono-ethnic political party representing solely the interests of one religion that has made the majority public to question whether that is the reason why the Animal Welfare Bill and the Anti-Conversion Bill remain virtually frozen despite their huge appeal to the vast majority of the people of this country.

In the Philippines Section 14, Article VI of its 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’. It is the right of anyone to stand for office but 11,000 attorneys of the Bar Association of Sri Lanka should by now know the invariable conflicts of interests in electing Members of Parliament (MPs) to head them.

There is also the instance of the revelations of 2 former judges at the AGM of the Judicial Service Association on 22 December 2012 when they declared in public that a man was sentenced to prison simply because the judge did not like the lawyer representing him. So where was the ‘rule of law’ and operation of equity for the man who had been sent to prison for no fault of his? How many other miscarriages of justice does the legal fraternity of Sri Lanka hide?

The ‘independence of the judiciary’ in Sri Lanka does not need foreign oxygen. For independence to prevail it must come within the legal fraternity itself. The Judiciary must function without bias, without malice, without political agendas.

Protecting the Constitution

As learned professionals in whose hands the enforcement of law and justice is said to be upheld, we expect much from the legal profession. Over and above the expectation to uphold every clause of the country’s Constitution, the key expectation of the public from the legal fraternity in Sri Lanka is to ensure the sovereignty of the country and the integrity of the country is kept intact. In this regard we were very disappointed not to see a single statement from the Bar Association President in response to the manner in which the British Prime Minster David Cameron humiliated the country and its President. When a State leader arrives to attend an international event there is diplomatic and State decorum to be followed. These were all set out not by us but by them. The humiliation meted out by David Cameron was in our eyes not against Mahinda Rajapakse – it was against the President of Sri Lanka and our country. Why was it only the President and the defense secretary speaking on behalf of the entire country while all other officials who had every capacity to speak up simply kept mum?

Patriotic legal profession – need of the hour

The members of the Sri Lanka Bar Association must ask themselves whether they are working in the interest of this country or some other country. What the country now needs are not lawyers who are swayed by taps on their backs by scheming foreign governments for collaborating on the type of legal system they wish to usher. The lawyers of Sri Lanka and their Associations are bound to use their legal skills to protect the sovereignty and integrity of the nation and uphold a rule of law that is home grown and has roots in our own pre-colonial legal system. We must strive to be proud of the jurisprudence and legal systems established by our own ancestors and not by somebody else’s grandfathers. This is the challenge facing Sri Lanka’s legal profession today as we move into the Asian era in this 21st century.