It is a given that one of the most important segments in any democratic society are the professionals. A professional, by virtue of his training, is able to shed his or her biases and dispassionately examine and come to a conclusion on any matter that he is required to give an opinion. Politicians by contrast are not trained in this manner and often respond to situations from their own political standpoint rather than from an objective or a national interest driven position.
While this is true of most politicians at most times, there are also notable individual exceptions as well as situational exceptions when politicians do take decisions from the perspective of general wellbeing, although they may be few and far between.
Among the professionals, the legal profession's training and calling is closest to the life of the people, as is evident by the large number of lawyers who almost inevitably gravitate towards politics. The issues that lawyers grapple with, on behalf of their clients, are the assertion of their individual and at times collective rights.
It has become the tradition, not only in Sri Lanka but also the world over, for the legal profession as a whole to concern itself with important national issues, such as those relating to the Constitution, the Rule of Law, the independence of the judiciary and the administration of justice. In the context of the elections to the Presidency of the Bar Association next week it is an opportune time to flag the question whether the Bar in Sri Lanka has lived up to its responsibilities.
In the past the Sri Lankan Bar has been in the forefront of protecting the Rule of Law and providing advise/ guidance to the Governments of the day when important issues were being discussed. In the late seventies, after the enactment of the 1978 Constitution, when judges of the higher Courts were promoted and demoted in complete contravention of accepted norms in a process which Dr.Colvin R.de Silva described as 'monkeying with the judiciary' the Bar took a principled stand against the Government's decision.
Despite the Bar Council of the day being predominantly dominated by supporters of the UNP, which was in Government, two junior members of the Bar were able to persuade the Bar Council to adopt a resolution condemning the Government for ' interfering with the independence of the judiciary'. It is to the credit of the members of the Bar Council of the time that they could identify and take a dispassionate decision affecting a hallowed institution from a perspective of the National Interest notwithstanding their own political loyalties.In the late eighties when Sri Lanka was plagued by human rights violations on an unprecedented scale, during the time of the Southern insurgency, the Bar Association set up a successful legal aid scheme with a wide reach, which helped victims of violations. It made representations to the UN Working group on disappearances which visited Sri Lanka, including providing sample cases from each district to show the magnitude of the problem. The well known case of the disappearances of the Embilipitiya students was another instance of the BASL making great efforts to redress human rights violations.
Consequent to the role of the Police in the unfolding scenario of human rights violations the general membership of the Bar took the unprecedented but controversial decision of refusing to appear for Police Officers. Even if occasionally the Bar may have taken decisions which did not meet with everbody's approval, the important thing was that they were willing to be counted at crucial times and were prepared to take a stand on matters of significance.
Today, unfortunately, the Bar has been reduced to a shadow of its proud self. When the 18th amendment to the Constitution, with wide ramifications for the country, was presented to Parliament, all that the Constitutional Affairs Committee of the BASL could come up with was a statement whimpering that such a law should not be rushed through as an urgent Bill.
There was no analysis of the pluses or minuses of the substantive provisions of the Constitutional Amendment by the BASL before or even after its enactment to guide the country and the Government on the matter.Contrast the reaction of the BASL to the news that the Courts complex was to be shifted out of Hulftsdorf . They were galvanized into action within a matter of hours and took to the streets of Hulftsdorf in protest.
Such a decision if it has been made (there has been no official announcement from Government as yet) naturally raises several legitimate concerns both for lawyers as well as litigants and must be subject to a rigorous critique of the pros and cons before it is implemented.
The BASL can undertake such an analysis and issue a public statement which can be beneficial both to the public as well as the Government before a final decision is taken. The significance however is in the contrasting courses of action taken by the BASL with regard to the 18th amendment and to the shifting of the courts complex. The distinction seems to be one of National Interest and self interest and thereby hangs a tale.
Today very few lawyers speak out on issues relating to the Rule of Law. There are of course a few honourable exceptions who, irrespective of whether their views are accepted or not, speak out on these matters but the Bar as a whole seems content to take the path of least resistance and not take a stand on any matter which requires taking a position.
Contrast the role of the Bar in our South Asian counterparts India and Pakistan. The vibrancy of Indian democracy is in no small part due to the leadership of the legal fraternity as well as other legal institutions in speaking out on matters as they see it. The fact that such freedom of expression brings to the surface shortcomings in the functioning of the Indian political system does not detract from the value of such interventions. In fact such action only reinforces and strengthens Indian democracy.
In Pakistan too the Bar has played an extraordinary activist role on National matters. Even during the stifling environment of military rule the Bar was not deterred in taking up issues which they felt affected the country in general and the judicial process in particular. In stark contrast our legal fraternity cuts a sorry sight, not because of any lack of legal erudition, of which there is plenty, but an unwillingness to exercise the right of independent thinking and independent action which is a part of the natural armour of every lawyer.
The Lessons Learnt and Reconciliation Commission headed by former Attorney General C.R. de Silva has made many important recommendations relating to the Rule of Law and allied subjects. These relate to, among other things, human rights, disappearances, the importance of an independent judiciary, transparency of the legal system and the role of the Police in the context of safeguarding the rights of citizens. Many of these can be understood in the light of the daily practice of their professions by members of the Bar and need not have awaited a recommendation by a Presidential Commission.
The BASL should have been pro-active and addressed these and other issues and made recommendations to the Government without a Commission having to make such recommendations. Now that the BASL has failed to do so, may we hope that it will at least actively work towards giving effect to these recommendations?
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