The People as sovereigns

And/or why the Bar should not fleece:

Debates on the merits of the efforts to impeach the Chief Justice have led to utterances on the sovereignty of the people.

This piece draws on extracts of a submission made to the Office of the High Commissioner for Human Rights in a shadow report emphasizing our efforts, prior to the UPR hearing and highlights sections drawn from our National Human Rights Action plan remind us and if indeed people are as sovereign as touted, what ought be done from a perspective of their rights and our duties.

Civil and Political Rights

Responding to our international human rights obligations, a cabinet subcommittee is mooted to review the draft Bill of Rights; amending standing orders of Parliament to allow public to comment on Bills through a website; establishing a standard procedure for civic and stakeholder consultation in developing national laws and policies; a complete revisit of the powers and functions of the Human Rights Commission to improve and strengthen it; a range of measures to safeguard right to life including of suspects in custody including bringing on personal liability for OIC’s( the IGP has astonishingly gone much further than this recommendation and he needs to be applauded - see his letter in response to an inquiry from the writer) ; introduction of Duty Attorney scheme improving conditions of detention; reviewing Official Secrets Act, Establishment Code and circulars in the context of Freedom of Expression; ensuring proper attention and ethical response to those seeking access to Justice/legal assistance curbing exploitation and unethical conduct by legal profession.

Economic and Social Rights

Equal access to quality of education for children with disabilities; quality education in all schools; addressing inequitable access to quality health care; ensuring sustainable supply of water for all; employment and equal opportunities; safeguarding cultural rights; language rights; supporting single parenting households and persons with disabilities and submission of a National Anti-Corruption Action Plan.

Rights of Women

Improving their health; economic empowerment; enhancing access to employment; address violence against women by, among other measures, proper implementation of the Prevention of Domestic Violence Act; targeting a 30% minimum representation of women in Parliament, Provincial Councils and local authorities; elimination of discriminatory laws including specifically the Land Development Ordinance and the Vagrants Ordinance; assisting those affected by conflict.

Access to Justice

The concern thus for access to justice ought not to be, the exclusive concern of only judges and lawyers. Change requires auditing the system in the Courts from– physical accessibility to differently enabled persons, the litigant’s access to information about cases, language comprehensibility and cost efficiency. Access is negated where the system is expensive; and the poor are priced out of an archaic system whose doors open only to a select group. Our legal system is at times beyond the common person. It remains alien and unintelligible without the aid of the Bar, which has a professional monopoly over jurisprudence.

The economically and socially disadvantaged sections, therefore, do not in that sense "access" the legal system to seek redress. They are drawn into it unwittingly in situations of conflict with the law, as complainants, suspects or defendants.

This is a hall mark of the current Poor law system in the country referred to in detail below. These situations accentuate the denial of access to justice, to basic legal services, resulting in grave violations of their liberty, while occasionally consigning ethics of lawyering to ash.

The approach to reform of the legal system must proceed on a premise of an engineering project and not mere tinkering. We need to examine the application of monetary bail bonds and sureties in relation to the economic status of the accused, the functioning of custodial institutions that hold vagrants, mentally ill, sex workers and women and children in prison-like conditions; the open violation of Court orders and the illegal use and cynical disregard for the law.

It would be most appropriate if the Judiciary were to consider initiating a mechanism whereby in every District a system of auditing the case load, responsiveness and status of in terms of process, quality of Justice dispensed and matters of Rules and Ethics of Judges and Lawyers are rigorously evaluated quarterly and made public without prejudice to anyone. It would lend immeasurably to enhancing and nurturing confidence amongst citizens.

The Bar Association representative of the profession is a public institution committed to public justice and pro bono public service. A lawyer is thus a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. The bar cannot be a silent partner and expect other organs to only come forward.

Their members play a crucial role in quality of Justice dispensed in this country. Normal laws applied without mercy at times on poorer citizens should not be excluded from being applied to members who have public licences to uphold or destroy the laws, courts and rights of citizens in this country if they deem fit. A continuous audit of compliance with Ethics and Rules binding Lawyers is hence a fundamental necessity.

A mechanism whereby the disciplinary functions over lawyers could be entrusted to a body which could act independently with perhaps lawyers now in practice should be precluded, and the pattern on which ombudsmen are appointed for various professional activities could be followed.

Legal services could experiment working on the pattern of neighbourhood law offices located in the community, employing legal service providers belonging to different disciplines to coordinate with other agencies including government offices, police, the courts and the various commissions.

During the period of 40 years that commenced with the Republican Constitution of 1972 Sri Lanka has followed a policy of rapid economic development coupled with a guarantee of legal justice but minus a foundation of social justice.

This has been akin to building a house without a foundation. It is to this foundation that we must now turn with full awareness that this society lacks a social policy that promotes equal opportunities to all its citizens. What is currently in place as a social policy is the colonial Poor Law system which adopts a three pronged approach to social problems composed of the criminal law; legal and administrative office based remedies provided by social services and probation and a massive voluntary residential care sector for institutionalizing the rejects of society.

What we require is a Policy and guidance for delivering a social care system that provides care equally for all, while enabling people to retain their independence, control and dignity.

The very language of human rights has to be liberated from legal and technical jargon of experts and replaced with the authentic experiences and voices of the people.

Citizen’s ‘Right to Grievance Redress Bill (being adopted in India)

A citizens Grievance Redress mechanism would satisfy the recommendation in the LLRC Report for the benefit of citizens in general and minorities in particular. It is a grievance redressal mechanism to ensure committed standards of public service and redressal of grievances in the stipulated time limit, any violation of Citizens Charter containing category of goods and services rendered by it and the time within which such goods or services be rendered. Implied obligations of public authority identify liabilities of public servants in case of default and to impose penalties for failure to deliver services or redress grievances in a time-bound manner and disciplinary action, ensure an appropriate, decentralised and citizen friendly ensure that Citizens can be facilitated and grievances are systematically recorded and tracked using telephone, sms, web etc.

What this piece attempts to encourage is to assess and implement what Cabinet has already approved in the National Human Rights Action Plan and in areas of Access to Justice to pay heed to significant lacunae in what is afforded to citizens.