Lawyer, defend thyself
Shenali WADUGE
[Point of VIEW]
The logic of declaring anything “independent” must be based on an
unwavering commitment to unbiased, devoid of discrimination and ethical
judgement in all cases whether they are associated with the three
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.
Parliament |
This politicizing of issues needs to surely stop for a country to
progress. The discussion raises the key question of how “independent”
the Sri Lanka Bar Association 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 percent 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.
Politician as BASL President
The Sri Lanka Bar Association 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/about_us/powers_privileges
- how adversely will this affect the public if the President of the Bar
Association takes the side of his client over the interest due to the
Public in view of his being elected a MP? 3000 members of the public
have been robbed of 26billion and 20 of these victims have committed
suicide – where is the justice for them and being a member of the legal
team for the accused is not the trust of the public compromised?
* 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. The President of the Bar Association
* 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.
Then there is the revelation by two former judges at the Annual
General Meeting of the Judicial Service Association on December 22, 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
judgements 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.
Conflicts of interests
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 Sri Lanka Bar Association 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 Sri Lanka Bar Association 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 forte. |