Focus on Rights

Then again, we have the ready preoccupation with the surreally absurd, of which a better example cannot be found than the recent extravaganza titled the National Law Week with its theme "Access to Justice" held under the aegis of the current leadership of the Bar Association of Sri Lanka.

The manner in which Sri Lanka has imploded, (not so much territorially as in the sense of racial, religious and economic insanity, underpinned by the near total absence of the rule of law), is not at all unique to this country.

On the contrary, this is a well-documented process of systemic disintegration that has been recorded time and time again by sociologists in other historical contexts. There is that dreary consolation of knowing that we are merely following along this well-trod path. Witness therefore the familiar burgeoning hatred of dissenting opinions expressed not only in political killings and intimidation but also by seemingly ordinary citizens through openly xenophobic letters to the editor in the pages of some daily newspapers.

After the inevitable pomposity of the speeches and the needlessly flamboyant newspapers Advertisements have faded away, it is pertinent to ask as to precisely how the legal problems of the multitudes have been addressed through providing a few days worth of free legal advice? To what degree has this ill thought out exercise served to actually improve access to justice (the avowed theme of this so-called Law Week) of Sri Lankans? In a country where the very maintenance of law and order has become precarious and public faith in the legal system including the independence of the judges at the highest level has been seriously undermined, do not such gala events serve to heighten public cynicism that the law is an ass and the lawyers, worse rogues? Let us examine these questions somewhat further.

A well declared canon of professional responsibility is that a lawyer champions the Rule of Law and mobilises public opinion against unjust laws and derogation of established fundamental rights and liberties. In this context, if any government systematically and consistently violates the principles of the Rule of Law, it is the duty of every lawyer and Bar Association, Bar Council and representative professional association to counter such violations. Equally, it is incumbent on the entire legal fraternity to mobilise its resources peaceably for the restoration of the Rule of Law.

The United Nations Basic Principles on the Role of Lawyers (1990) and the 1983 Montreal Universal Declaration on the Independence of Justice, for example, specifically confer public duties on lawyers. The latter in particular, obliges lawyers to educate the public about the principles of the rule of law, the importance of the independence of the judiciary and of the legal profession and to inform them about their rights and duties and available remedies. This responsibility remains even more imperative in developing countries and in regard to the "poor and marginalised" sections of society.

These instruments target formal associations of lawyers in addressing the thorny issue regarding the independence of the legal profession. Thus, bar associations are generally mandated to ensure the independence of the legal profession and as a necessary corollary, the independence of the judiciary. Interestingly however, recent international legal assemblies reaffirming and expanding these instruments go further, imposing definite duties on individual lawyers as well as formal associations in that respect. (see The Independence of Judges and Lawyers in South Asia, International Commission of Jurists, CIJL, [1987], p60)

So, what role has the Bar Association played in regard to questions of overriding importance regarding implementation of the rule of law in this country as differentiated from palliating its collective conscience by presiding over gala events of little or no importance to the common people? In a society rift asunder by conflict, where human life is counted of no value in areas where the writ of the Government runs, as well as in the North-East where worse atrocities are perpetuated in the name of war, what is our overriding concern? Undoubtedly it is to have the rule of law restored and mechanisms of accountability strengthened.

From about the beginning of this year, when the 17th Amendment to the Constitution was systematically disregarded and appointments made to key commissions disregarding the mandatory requirement that the nominations ought to be approved by the Constitutional Council, we have seen a precarious abandoning of constitutional governance. Accompanied by the intensification of the conflict, patently lukewarm peace negotiations by both parties, the increase of religious and racial intolerance in the South and the widespread pattern of political as well as personal assassinations, Sri Lanka is more democratically fragile than ever before.

But has the Bar Association thought it fit to bestir itself in any of these desperately crucial situations, even to the minimal extent of issuing statements calling for constitutional governance and/or accountability and/or substantial justice for the victims of killings and abductions?

In the recent controversy involving the resignations of two judges of the Supreme Court from the Judicial Services Commission (JSC) on 'grounds of conscience" apparently over differences with the Chief Justice in the way that the Commission was functioning, did the Bar Association (under its present leadership) take a definitive stand? Not so long ago, a fifty four page Report of an observer mission of the International Bar Association (IBA) in August 2001 pointed to very important concerns in that regard.

At that time, the IBA mission, examining the disciplinary powers of lower court judges by the JSC, concluded that it could not be satisfied that the JSC was acting entirely without outside interference. Six examples where there had been an apparent lack of accountability, a breach of natural justice, the potential for undue interference and disregard of appropriate and equitable procedures were detailed. Crucially, the observers pointed out that a number of people were, in fact, reluctant to meet the IBA delegation for fear of repercussions. The mission suggested that the functioning of the JSC should be made more accountable and available for public scrutiny.

In the context of this 2001 report, it was even more necessary that the fracas involving the JSC this year should have been resolved so that public faith in the administration of the subordinate courts and judges would not be further undermined. Instead, the controversy was allowed to subside without due constitutional resolution. Thereafter, two other judges were appointed to the JSC and that too, without the mandated concurrence of the Constitutional Council. What was the publicly articulated position of the Bar Association in that regard, I wonder?

More recently, some of the situations that have arisen in relation to protection of basic life and liberty involve basic issues of justice. Currently we have the absurd situation of a (yet another) Presidential Commission of Inquiry being appointed to inquire into fifteen selected cases of extra judicial killings without the public being told what its terms of reference are or, for that matter, the provisions of the law under which it is appointed. Equally, though a group of eminent international legal experts have agreed to be appointed as observers, we are not told as to what their terms of reference are, either.

While the reluctance of the government to allow public scrutiny is to be expected, it is surprising that the Office of the United Nations High Commissioner would have welcomed the establishment of such a commission without first ensuring the transparency of the process. The constant complaint of many has been that domestic processes of investigation and recourse to courts have failed to bring about accountability in the current situation of renewed conflict and that recourse to an international human rights monitoring mechanism is the only answer. As a primary association of legal professionals, does not a duty arise on the part of the Bar Association to intervene even generally to raise the issue of accountability instead of indulging in asinine pontifications on access to justice, the insincerity of which cries aloud to the heavens to bear witness?

It is assuredly not in expectation of rational answers that these questions are being posed in this newspaper column. Rather, it is to drive home the point that though there may be those who indulge themselves with such whimsical flights of fancy such as a National Law Week on Access to Justice, far greater numbers look upon such exercises of arrant hypocrisy with amused contempt. As the oft-told lesson of the emperor without clothes teaches us, this country can very well do without such celebrations of futility in the future.