Columns - FOCUS On Rights

Reflection on 'traitors in black coats'
By Kishali Pinto Jayawardene

Ronald Dworkin, one of the greatest of American jurists who spoke passionately for the cause of freedom of expression would undoubtedly have been reduced to gibbering at the mouth if he had reason to reflect on the adroit utilizing of this fundamental freedom by repressive regimes to (contrarily) defeat that very freedom itself, when sought to be exercised by their critics.

This twisting of language is, of course, nothing new. We saw this during the era of the Bush administration in the United States itself, with the deeply problematic terminology of 'patriotism' and 'either you are with us or against us.' We continue to see manifestations of this same thinking around the world, Sri Lanka being a particularly illustrative example in recent years. However, as dangerously familiar as we may have become to such intimidation, it was thought that with the ending of active fighting in Sri Lanka, a more relaxed and liberal era would dawn. Yet, these hopes appear to be illusionary as seen most explicitly in regard to the question of five lawyers being labeled as 'traitors in black coats' on the Defence Ministry website.

The hypocrisy of fantastically liberal reasoning

In the best traditions of the past, the government's position appears to be that such name calling is permitted in the name of freedom of expression. This is clearly articulated in the Defence Secretary's recent response to the July 14th letter of the Bar Association protesting against the relevant website report, where the reasoning is as follows; "It must be mentioned that it is a known feature in the public domain (which includes members of the defence and security establishment) that during the 30 year war there are/were members of your profession who are well known in the public arena to cover causes for and against terrorism with dedication personally and professionally. The public are aware of such categorization and accordingly (sic) media unit of the defense outfits too are free to comment, just as you are free to appear for any cause. The public will decide on the appropriate classification of patriotism or terrorism or otherwise, if that is material or relevant."

It would have been easier to accept this (fantastically liberal?) reasoning if such categorisations had ended there. However, the reality is that, there has also been swift physical retribution of those unfortunates who are the targets of such name calling, by unidentifird assailants. Poddala Jayantha is the most recent such example and the list is exceedingly long indeed. It is this which renders the government's simplistically easy justification (on the basis of 'freedom of expression' no less) of such comments and calumny, quite unacceptable.

The duty of the Bar Association

Meanwhile, a related issue pertains to the right of a lawyer to appear for a client and the client's commensurate right to a legal defence, even if he/she may be the worst criminal on earth. I recall a few years back, a senior lawyer of noted integrity, (and for those who are interested in this fact, of Sinhalese ethnicity perchance), insisting on appearing for a terrorist suspect detained in Boosa for no fees purely due to his insistence that the suspect deserved a fair trial. This is not to say that all lawyers are governed by such altruistic motives. However, whether for fees or for not, it is the right of every lawyer to afford legal representation. Their integrity in turn, will be determined by their peers and by the public. But condemning them for this alone cannot be condoned. From hereon, it is only a small jump to applying this same reasoning of 'patriotism or terrorism or otherwise' to judges.

So, are we now been called upon to regard all lawyers who appear for terrorist suspects as well as judges who rule against policies of the Defence Ministry as traitors (in black coats or black gowns or otherwise)? This is an astounding situation indeed.

The Bar Association of Sri Lanka is expected to refute such reasoning in the strongest terms possible. If not, the legal profession in this country may well abandon all vestiges of pride that once attached to its calling. Bar associations are mandated to ensure the independence of the legal profession and as a necessary corollary, the independence of the judiciary. It is a canon of professional responsibility that a lawyer champions the Rule of Law and mobilise public opinion against (unjust) laws and derogations of established fundamental rights and liberties. It is also the duty of every lawyer and Bar Association, Bar Council and representative professional association to counter such violations. But by what stretch of the imagination could these principles be applicable in Sri Lanka when the mere fact of appearance itself for clients (however unpopular they may be) is ferociously condemned by agencies of the government?

Justice is of the people

There is a profound logic to this question. Justice is of the people. It is not something to be hogged by the government, the Ministry of Defence or by thugs who resort to beating up those bold enough to disagree with the policies of their masters. Lawyers should be allowed to appear for their clients, even terrorist suspects as the case may be, without character assassination. In turn, the legal validity of their defence or their application will be tested against the law by the judge/s presiding over the case. Interference in these processes undoubtedly amounts to contempt being shown for the court. No one, (however politically powerful he or she may be), should be placed above this basic canon of respect for the legal/judicial process. This principle needs to be asserted by the Bar Association of Sri Lanka which should not confine itself to making statements or seeking meetings with high government officials for the purpose of 'explaining' their plight. Instead, a stronger response is called for.

During the last ten years, we have seen unprecedented public concern voiced with regard to the functioning of the legal/judicial system across the length and breadth of this society. Many of those interventionists have had no immediate contact with the law but have shown concern as a result of the need to maintain the basic minimum of a fairly working legal/judicial process. These interventions should not stop and we should not maintain a studied silence. The demand for justice should not lie in the hands of an elite few (either in the government or in the opposition) but in the voices of the multitudes.

Ensuring the accountability of those who govern us

Equally, the accountability of those who govern us, to ensure that our demands are felt and our concerns addressed, should stem from this same public voice. Today, it may be the right of a lawyer appearing for an (alleged) terrorist suspect. Tomorrow, it may be you or I who are unable to find legal representation for a particular matter due to the counter reaction of a prevalent establishment or by powerful political figures. Are we willing to let this happen without any outcry?

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