18th January 1998

Bar and the millennium: Going, going but not quite

By Rajpal Abeynayake

Romesh de Silva, President of the Bar Association was interviewed last week on the National Law Conference to be held next week and the growing concerns of the Bar: Excerpts:

Romesh De Silva
Mr de Silva: The theme of the National Law conference to be held this week is "law in the next millennium''. I feel that it is necessary as far as the Bar Association is concerned, to keep abreast of not only our own problems, but also of what is happening in the world. It is necessary for our lawyers to think ahead. We are very concerned about the mundane problems but at the same time we are aware that one must not only be concerned of the mundane problems, because that's going to be a frog in the well attitude. For that reason it is necessary to look ahead, both nationally and internationally. We have invited. Dr. Weeramanthry, an internationally acclaimed jurist and judge to deliver the keynote address. We have suggested that his keynote address should be on what the law will be in the next millennium, and also on how this country should do to be in tune with what that law would be.

Q: The flip side of this is that though we are attempting to leap- frog in to the 21st century, we are still very backward in many areas such as the speed of litigation etc.,(laws delays). We are hamstrung by all the impediments of the system such as laws delays, corruption etc.

How does the Bar Association propose to deal with these issues while being cognisant of the fact that we have to deal with the future....

A: First of all we have to know what we want. To see that, we have to know what we have, and then change. Otherwise we will never change. As you rightly say, there are so many problems which are not confined to this country alone. In England, a report has been submitted recently on laws delays. These problems have not only to be tackled , but have to be tackled with a vision. The conference should not only see that justice should be there, but how to achieve it. Corruption, partiality, pressure groups and various other aspects such as inequality in access to a lawyer all are problems which we have to face.

Q: Prof. Weeramanthry's keynote address will ( you said,) be on law in the next century. Will you elaborate

A: Yes, law in the next century and what we should do to get there; if the lawyer in the twenty first century should be such and such, what should we do today to achieve that. It may not be sufficient for lawyers to be concerned with narrow segments of the law, or narrow sections of Sri Lankan law, because there may be cross border laws that will come for instance.

In criminal law for instance ,there will be aspects such as drug trafficking, money laundering and international banking. For a lawyer to be conversant with a narrow segment will be inadequate. We may have to broaden the curricula at Law College, and have continuing education for lawyers.

But unless we know what we want to achieve, we can never start. We are lagging behind, to a large extent, because we do not have a vision.

Q: What are some of the new areas in the law that you think we should be concentrating on?

A: I think a great deal of conflict resolution will be outside the courtroom, so the skill of a lawyer must not necessarily be the skill of advocacy. Today we are trained to be advocates, but there may be other skills such as skills of negotiation. The focus is being taken out of a courtroom situation to a situation, where the skills of an arbitration lawyer or a boardroom lawyer will be required more, in the twenty first century, I think.

Q: One cannot divorce these developments from the practical reality, and in that context it must be of some concern to members of the Bar Association that dispute resolution will be going away from court to mediation boards etc. This will in a practical sense threaten them financially, and there will doubtless be some element of concern.

A: I do not think lawyers will be hit financially because there will always be room and work for lawyers. I do not think the role of the lawyer will diminish. If at all it will increase.

Q: But if conflict resolution is to be taken out of the courtroom, in which way will it enhance the quantum of work that lawyers will get?

A: Unfortunately the lawyer is seen as an actor in the courtroom whereas the major earners in the legal field are not necessarily courtroom lawyers. In the US, there are firms of attorney's in which there are fifty to sixty attorneys sometimes. The chiefs or the main money earners of those firms are not courtroom lawyers and there is always only one segment who are courtroom lawyers. So the money will always be there — but not necessarily from appearances in the courtroom. As far as resistance is concerned, of course there may be some resistance, because most people are resistant to change.....

Q: There may be firms which employ lawyers, but as far as mediation goes isn't it the impression of lawyers that there is a direct taking away from the work of lawyers, because lawyers hardly have a role in the world of mediation boards.

A: The mediation I was talking about is certainly not what's practised in the mediation boards. The mediation board involves itself in a certain type of mediation where, when the dispute had already arisen, one is obliged to go to the mediation board before the dispute comes to court. That's not the type of mediation practiced in developed economies. It is mediation between companies and boards at a different level, and in that type of mediation and negotiation a lawyer plays a very important part because you cannot mediate outside the law. You have to know the law to know your rights and any type of mediation must arise from your rights.

Q: To some extent the public perception of the lawyers has also undergone some element of damage, (that lawyers are a mercenary lot etc.) Is there any effort, as a body of lawyers, to address the issue of combatting this public perception.

A: I didn't think this conference will address the public perception. The conference will be only for two days and will have to concentrate on the topic of discussion. But certainly sections of the public will have that perception. I think you can change that by changing the attitude of the lawyer. The more the lawyers are professionally oriented, the more the public perception is bound to change.

Q: But instead of letting it happen automatically, is there any concerted effort to bring about such a change?

A: Well there is. We are drawing up a code of ethics for lawyers fairly soon. One cannot change the public perception, but one can only change one's own behaviour, so hopefully after some time it will change......

Q: How about the general standards of the profession, especially the thorny problems that arise in a country such as ours, vis a vis issues such as language for example. The use of English will be pronounced as laws in new areas such as computer law comes into the equation, yet English language competency, especially among the younger generation of lawyers is a sensitive issue?

A: I think first of all we must realise what the law is going to be in the next millennium, and what the challenges are for the lawyers in this context. Now one of those challenges may be the language problem. But there are several countries such as Japan which have overcome the language issue. So we must know what we will have to face in the next century, and then overcome the obstacles.

Q: You mentioned Japan, but in Japan all court-work is done exclusively in Japanese , while there is an overlapping of languages here. In that context, how do we address these issues.

A: What is done domestically is done in Japanese in Japan, but they have been able to face upto the international challenge. They are in Europe, they are in Asia, and wherever they are they use the language of that place.

Q: You said the theme of the conference should be what the law is and what the lawyer is. What exactly do you mean by this? What exactly do you mean by saying "we must know what the lawyer is'', for instance.

A: We would like to throw open these ideas at the conference, and it is only then that we will be able to know and identify these areas.

Q: Tangentially, before your watch ( tenure ) as President Bar Association began, there was some fear of the threat of politicisation of the bar. Since your tenure as President began, have you been able to give some thought to these issues, and what do you think of these issues.

A: I think I won because most of the members felt the bar should be depoliticised. I think nobody not even our worst critics can say we have been political in our decision making, after this ex-co took over.

Q: The independence of the judiciary is of fundamental importance to every member of the Bar Association as lawyers, because they have a vested interest in seeing that that independence is maintained. So, in relation to that, do you think there have been any threats to this independence latterly ?

A: We have to be vigilant, and wherever possible prevent the erosion of the independence of the judiciary. We have indicated that the appointments to the judiciary should be properly and correctly made, and the bar should be consulted in these matters.

Q: However, appointments to the judiciary have been delayed, for instance, (despite what you say), and this has raised some eyebrows. What would have been the reason for these delays?

A: I do not know about motives, but we have been very strong in our views that appointments should be made after proper consultation and properly made. You probably know more about motives etc,. than I do.

Q: As far as the conference is concerned, are there any highlights you want to stress.

A: I think it will be of interest not only to lawyers, but investment bankers, bankers ,insurance personnel etc.,. I think the banking community should take full cognisance of the fact that laws in banking are changing, and this conference is open to all personnel in these areas.

Q: You spoke of computer law etc., but there is also a major problem of resources the bar faces, when we talk of technological development etc., How does the bar hope to address this problem of lack of resources for adding to the infrastructure of the legal community.

A: We have to address whatever problems. You have identified resources, you have identified corruption, you have identified language. I think it is part of our duty to initiate a dialogue on how to overcome the problems. If we think the problems are insurmountable...

Q: .......I'm not saying that, but is there any real plan to surmount these problems?

A: There is.There are a lot of problems such as offices, leave alone computers, we have addressed those problems, at least some of them, and for example we have provided law reports for instance to every bar. We have given loan facilities to all new members of the bar. Lack of chairs, transport facilities are all being addressed, but those are all other activities of the Bar Association. We have been concerned about the real problems of the members of the bar, but our problem is that we don't have enough publicity on these things because we are not publicity conscious. People do not know.

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