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Extracts from the address by President of the International Bar Association Desmond Fernando to the Bar Association of India on January 06.
My theme today is this: The role of a Bar Association in the furtherance of Human Rights.
There is no better place than India to consider this topic. For India is a great innovator. The Supreme Court of India assisted by the legal profession has pushed forward the frontiers of freedom to a greater extent than any other country. Judicial Activism and Public Interest Litigation have made human rights a reality for the people of India.
In case after case the Supreme Court of India has curbed arbitrary power and added to the rights of the people. Not only the rights set out in the International Covenant on Civil and Political Rights; but also the rights set out in the International Covenant on Economic, Social and Cultural rights.
Chief Justice Bhagwati has enunciated the concept of "Juristic Activism" - which is concerned with the creation of new concepts irrespective of the purpose which they serve. In the Keshavanand Bharati Case, the Supreme Court interpreted article 368 of the Indian constitution which confers power on Parliament to amend the constitution.
The Supreme Court refused to accept a narrow textual interpretation and held that the power to amend the constitution was not an unlimited power but was restricted by the basic structure doctrine and it was not competent for parliament to amend the constitution so as to affect any of its basic features such as republicanism and secularism.
This judicial activism on the part of the Supreme Court of India was intended to protect the citizen against any drastic or draconian amendments which may be made by the ruling party by the use of its brute majority in parliament.
Likewise in the State of Rajasthan case, the Supreme Court held that it was entitled to examine the question as to whether the President has rightly dissolved the state legislature and superseded the state government because the Court considered that it was bound to enquire whether the conditions for the exercises of its power were satisfied.
The Supreme Court observed in that case that no exercises of constitutional or legal power is beyond the scrutiny of the Court Article 21 of the Indian Constitution which enshrines the right to life and personal liberty was by judicial construction held to encompass the right to bail, the right to a speedy trial, the right to live with basic human dignity and the right to a healthy environment. In the words of Chief Justice Bhagvati - "The result was that the Supreme Court became identified by the justices as well as by the people as the last resort for the oppressed and bewildered and by providing easy access to justice and by ensuring basic human rights to them, the Supreme Court acquired a new credibility with the people" - (Commonwealth Law Bulletin Vol 18 No. 4 page 1267).
Judicial activism is not confined to India. What better example is there of Judicial activism than the concept of negligence enunciated in Donoghue V. Stevenson. Lord Denning has said "My root belief is that the proper role of a Judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is the province of the Judge to do all he legitimately can to avoid that rule - or even to change it - so as to do justice in the instant case before him (Lord Denning - The Family Story 1981, pg. 174). These achievements by the Judiciary would not have been possible without the co-operation of the Legal Profession.
What then is the role of Bar Associations. The UN. Basic Principles on the role of lawyers adopted by the UN. General Assembly in December 1990 formulates the structure and role of Bar Associations. It also emphasises those rights which are the special duty of lawyers to protect and promote.
It is significant that the preamble commences by placing the role of lawyers and professional legal associations in their correct perspective, "whereas in the Charter of the United Nations, the peoples of the world affirm inter alia their determination to establish conditions under which justice can be maintained and proclaim as one of their purposes the achievement of international co-operation in promoting and encouraging respect for human rights and fundamental freedoms without distinction as to race, sex, language or religion".
The recitals then go on to formulate those rights which it is the special mandate of lawyers to protect and promote.
The final recital deals with professional associations of lawyers. It states.
"Whereas professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all in need of them and co-operating with Governmental and other institutions in furthering the ends of justice and public interest".
The operatives part is divided into six sections -
1. Access to lawyers and legal services.
2. Qualifications and training.
3. Guarantees for the functioning of lawyers
4. Freedom of expression and association.
5. Professional associations of lawyers.
6. Disciplinary proceedings.
Human rights mandate of lawyers
Before considering the role of Bar Associations under these headings it is a good starting point to examine those rights to which lawyers as a profession should give priority to. These are contained in the preamble. They are
1. Equality before the law.
2. The presumption of innocence.
3. The right to a fair and public hearing before an independent and impartial tribunal.
4. All the guarantees necessary for the defence of charged with a penal offense. (These rights are contained in the Universal Declaration of Human Rights).
5. The right to be tried without undue delay.
6. The right of persons charged with a crime for which capital punishment can be imposed are entitled to adequate legal assistance. (These rights 5 & 6 are contained in the International Covenant on Civil and Political Rights). 7. The right of a detained person to have the assistance of and to communicate and consult with legal counsel. (This right is contained in "The body of principles for the protection of all persons under any form of detention or imprisonment").
A. Access to lawyers and legal services
I) Article 3 requires Bar Associations to co-operate with Governments in the organization and provision of legal services, facilities and other resources to the poor and the disadvantaged persons.
ii) Article 4 requires Bar Associations to promote programmes to inform the public about their rights and duties under the law.
Qualifications and Training
i) Article 9 requires that Bar Associations shall ensure that legal education includes awareness of Human Rights and Fundamental Freedoms recognized by National and International Law.
ii) Article 10 requires Bar Associations to ensure that there is no discrimination against entry to the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status.
iii) Article 11 relates to the duty of a Bar Association regarding groups, associations and regions whose needs for legal services are not met. It requires Bar Associations to take special measures for candidates from these groups to enter the legal profession.
Article 24 lays down a very important right. It is the right to form professional associations. The article also makes it mandatory for the association to be governed by an elected executive without outside interference.
These then are the bench marks by which we may assess the performance of a Bar Association in the field of
Human Rights and its independence.Human Rights Institute of the IBA
The Human Rights Institute has been the IBA's contribution towards achieving international co- operation in protecting and promoting Human Rights. The International Bar Association has as one of its objectives the protection and promotion of Human Rights. This has been done from its inception in 1947. It was given greater impetus by the creation of the Human Rights Institute. On 5th December, 1995 the IBA set up its Human Rights Institute.
The Institute's Honorary President is President Nelson Mandela. Two eminent Indian Lawyers serve on its council, Mr. Fali Nariman and Mr. Soli Sorabji.The Institute has a structure and organization which will ensure effectiveness.
It also has the resources. The IBA has called on its 181 organisational members to contribute a dollar per head for every lawyer it represents. The co-operation so far has been good. The 181 organisational members represent 2 1/2 million lawyers.
1. The Independence of the Judiciary
2.The Independence of the Legal Profession.
3. The right to a fair trial.The Institute also has Human Rights Liaison officers who liaise with each of our 181 organisational members, report to us and assist them in the task of protecting and promoting Human Rights.
The Institute also has a trial observer corps.
Recently we sent a mission to Kenya headed by Sir William Goodhart. The Institute hopes shortly to send a mission to Nigeria.We have good relations and work closely with the ICJ.
Lawyers and Bar Associations have a special role to play in the protection and promotion of Human Rights. The need is great. And so is the urgency.
Justice Michael Kirby, the distinguished President of the ICJ made an oft quoted remark some sixteen years ago when he was Chairman of the Law Reform Commission of Australia. Commenting on the 52 years it had taken lawyers to join scientists in ANZAAS (The Australia New Zealand Association for the Advancement of Science) he said "Lawyers generally prefer not to rush things".
I am sure that he will be the first person to agree with me that our aim as lawyers and Bar Associations in the field of Human Rights should be "let us rush things".
Mention was not made in the press initially that Sheila Gujral, the wife of India's Foreign Minister, had accompanied her distinguished husband on his trip to Sri Lanka early this week.
The invitation to lunch extended by our Foreign Minister's wife Suganthie Kadirgamar to meet her last Monday, naturally came as a surprise.
Dressed in a simple floral printed saree and beige blouse, Sheila Gujral struck one as a rare union of brains and modesty. She is the author of twenty four books mostly poetry. She writes in Hindi, Punjabi and English.Mrs. Gujral talks in an unassuming manner of her achievements. She is an M.A. in Economics and was a lecturer in Economics until she shifted to a literary career. She also counts a diploma in journalism and in Montessori training, and a D.Litt from the World Academy of Art and Culture. She was also the Editor's choice in 1992 for an award in writing poetry from the national Library of Poetry, Maryland, USA. "Canvas of life", a collection of English poems (the themes of which she chose at random) will be published soon.
So much for an impressive literary and academic background. Her literary activities are bewildering no doubt, but her values show the solid personality of a woman unspoilt by achievement.
Mrs. Gujral matriculated at the age of thirteen with two double promotions to her credit. "Well, I think in those days we did not think much about it. Now in retrospect, I wish I had not matriculated so young. Somehow I feel I missed something vital for a growing young person. By the way my husband and I were students at the same school."
It was a love marriage perhaps? "No we hardly spoke to each other. Once classes were over we went into our respective common rooms. It was an arranged marriage".
You have been married for fifty one years, what is your assessment of married life I asked.
"It is a happy and fulfilling one provided the partners learn to give and take. Some couples look upon marriage as a sort of rivals living together or as a business affair, where one wants to outdo the other. That is bad, it won't work. One must not insist on bettering one's self at the expense of one's partner," she says.
Asked how she kept herself in the background, so much so that few were aware she had accompanied her husband here, she says, "Yes, I don't think it is right to capitalise or exploit on one's husband's position. I'd much rather keep my identity and my privacy."
Sheila Gujral is dedicated to helping young women writers and as President of the Lekhika Sangh, the Women's Writers Association from 1981 to 1986, she has edited six anthologies of short stories and poems on behalf of the Association.
She has also written a biography of Motilal Nehru titled "Dada Nehru" in both English and Hindi.
Poetry however, seems to be her passion. She won the World of Poetry golden Award in 1990. She is keen that SAARC Federation of University Women should encourage inter cultural activities. She asked Manel Abeysekera, Secretary General of the SAARC Women's University federation to do so. Linguistic barriers could, she felt, be overcomed.
It was indeed a privilege to meet her at Suganthie Kadirgamar's elegant home. Suganthie, like her distinguished guest, has shunned the limelight in an unassuming manner despite the publicity her husband's career as Foreign Minister attracts.
Chintha Karunaratne can cure many ailments through her healing touch. There have been many cases of cancer which she has cured.
She says she heals out of karuna or loving kindness towards all beings, not only towards humans, but also towards animals.
Talking to us about her healing power she says, "I worked hard to achieve this. This is not merely a divine gift. I meditate a lot to achieve results which will help people. "
"After a healing session I feel very tired and weak, but I continue to heal because I can't bear that living beings suffer."
She doesn't attempt to interpret her extra-ordinary capability in terms of any particular religious belief.
"I am satisfied as long as the suffering of a person is alleviated, I never wanted to find out whose power I am channelling -Jesus's, Allah's, Hindu Gods, or Lord Buddha's- my aim is to cure the patient," she says.
She refers to this flow of energy as "vibrations". She claims that different Gods have different "vibrations".
There are many cases of miraculous cures of cancer patients.
Kaushal Karunasinghe a middle aged woman from Mattegoda says she was cured completely by Ms. Karunaratne.
"I was suffering from arthritis for a long time. I also had frequent wheezing. I had been taking Western as well as indigenous medicine, without any permanent effect on me."
Ms Karunasinghe tells of her encounter with Chinta thus:
"When I was treated I felt a warmth. I noticed her finger tips turning red. I felt as if I was standing near a fire. At this session I was cured of my wheeze."
Ms. Karunaratne says, this healing system works best when the patient is very receptive. For this one should have belief in it.
"It plays a major role in the cure. The patients should be positive and co-operative. If one mentally blocks the "vibrations" flowing it will become difficult," she says.
There are a lot of similar stories about her curative powers.
She has had healing sessions in countries like Australia.
A news letter circulated among Lankans in Australia claims that some people had reported having seen "rays emanating from the head and fingers."
The news letter claims that there are many who have witnessed her super natural powers.
Although she claims she can cure many disorders, she prefers to concentrate on cancer patients, she says.
"I heal out of love for people. Don't make me a psychic healer or a mystic she says," laughing.
She holds two free healing sessions a month. One such session will be held today at the Thilakaratna Aramaya, Borella,(opposite Dasa showrooms) at 9.00 a.m.
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