Of national law weeks
and other useless extravaganzas
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
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
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.
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
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, , 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
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.