7th November 1999

The lawyer has to defend the 'good' and the 'bad'

By Mudliyar

When will the Bar Association wake up from its deep slumber? The Bar and its members are under constant attack. The media, and the public have taken up cudgels against a profession which they conceive as a bunch of no gooders who aid and abet crime. Whenever a girl is raped, money extorted, or a child murdered, the electronic media goes into action. The public vent their grievance and want punishments under Islamic law introduced here. The public would have loved to congregate at Galle Face Green to see the heads of criminals being chopped off as in Arabia.

The cruelty of our people seems to be genetic. It is our people who follow four great religions, who killed innocent Tamils in 1983. Was there a murmur of protest when Tamil prisoners were killed in prisons? Then in 1971 and in 1989 it was the turn of the Sinhalese to be butchered. In 1983 there were a few Tamils who were burnt alive, in 1989 burning cadavers of Sinhala youth befouled the air and was the order of the day. The attitude of the majority was muted and silenced. The 'Dethis Vada' are a part of our culture. It was the King of Sinhala who witnessed the gory pulping of her infant son by a mother, behind him was the Temple of Tooth.

Closer to our times a little boy was killed for ransom, by another 17 year old, and his body flung into a lavatory pit. How much we have become a part of this cruelty and inhumanity can be found out by tapping our conscience. How many people feel that the best way to settle the ethnic strife is to indiscriminately kill every single Tamil in the North, specially when a bomb goes off in the metropolis or when the Army is defeated in combat. I have heard these mutterings not from those who dwell in gutters but those who live in palaces.

When the crime rate increased out of all proportion the public and the media had to find a scapegoat to cover some of their own sins that have contributed to the increase in the crime rate. The exposure in some newspapers of various incidents of crime, especially crimes relating to sexual abuse of women and children, are given pride of place. The gory details of the crime and sometimes statements which are not public documents and which therefore the public has no access to are published verbatim in some newspapers, specially when it relates to confessions made to Police Officers in relation to sexual offences. I was appalled to read a word to word report of the confession made by a wife who was accused of killing her husband with the aid of her young paramour, who happens to be an Army Officer. Even the Counsel for the accused has no access to such a statement when the matter is taken up as a preliminary inquiry in a Magistrate's Court.

The Police leaked the statement out to the press, to show how clever they were in apprehending the accused, and the Press published the statement in detail to titillate the baser instincts of its readers. This woman and her paramour will never be able to request a Jury trial as most members of the Jury who are accustomed to reading Sinhala newspapers would have been convinced of the truth of the confessionary statement. It is common knowledge that these statements recorded by Police Officers are statements sans any voluntariness on the part of the accused. The Police Officer sometimes adds details to the story to make it more spicy and gruesome. Some Police Officers still believe that these statements may be used in a Court of Law in the future. When it comes to rape cases, the statements are recorded by Police Officers who are told that every single detail of the rape victim must be put on paper to corroborate the testimony of the complainant. Some details the complainant never gave the Police which are wholly untrue are added to enhance the statement. Unfortunately when the complainant is confronted with the statement, she buckles down under pressure and contradicts the statement which she is alleged to have made, but was never made by her.

The belief among people that the publicity given to violent crimes in the media, highlighting the gory details with blood splattered pictures in the front pages, tend to increase the rate of crime cannot be completely dismissed. It is a matter of fact that in the recent extortion and murder of Sadipa, the accused is alleged to have made a confession to the Police that he got the idea by watching the re-enactment of the G.C. Wickramasinghe extortion case by the National TV. The entire episode of how the extortion was committed was telecast by the National TV. The producers would have thought that this would show the efficiency of the Police and deter anyone from attempting to commit such a crime. But the whole theory fell on its face as the young juvenile delinquent thought that he could commit the same crime by covering all the loopholes.

The crowd of over 5,000 that assembled in front of the Kalutara Magistrate Court when the case was heard was led by Buddhist priests and members of the Catholic clergy. It was a demonstration mainly against the lawyers who were appearing for the accused. Mr. Eardly Perera, former President of the Bar Association of Sri Lanka and a respected senior lawyer of the Bar, was humiliated and his vehicle was damaged by the unruly mob. But what is beyond the comprehension of any reasonable man is why the Police failed to provide security to the members of the public when there was such a gathering outside the Court House. Did the Police remain silent as they also have been conditioned and brainwashed by the virulent campaign that has been carried out by the electronic media against the lawyers. The last scapegoat seems to be the lawyer who has a role in defending the rights of the people, whether they are the accused or the complainant in a case.

This rot started when in Negombo, Catholic priests demonstrated with the devotees of the Parish denouncing the lawyers for appearing and defending an European paedophile. It was unfortunate that the Bar Association at that time did not do anything other than passing resolutions expressing concern over this matter. It is unbelievable that members of the Catholic clergy should take such a stand against the inherent right of an accused to retain a counsel of his own choice. If the priests who were involved in this demonstration acted independently without the direction of the Church then it is up to the hierarchy of the Catholic Church to educate its clergy regarding the correct position. It has been the belief of the ordinary people of the Parish, that lawyers are mercenaries who could be hired for a fee to do any dirty job and therefore it is the inherent right of the people to protest against such actions.

This position took a downward turn when some misguided lawyers of the Colombo Magistrate's Court demonstrated against fellow colleagues who had been retained to appear for the suspects of the Rita Jones murder case. The Bar Association immediately intervened and spoke to the lawyers concerned and told them of the inherent provisions of the Constitution which state that every person is presumed to be innocent until he is found guilty by a competent Court, and also of the provisions of the Supreme Court Rules, which govern the conduct and etiquette of Attorneys-at-Law. Rule 5 states "An Attorney-at-Law may not refuse to act on behalf of a party or a person in any matter or proceeding before any Court, Tribunal or other institution established for the administration of justice or in a professional matter at his or her professional field. Provided however an Attorney-at-Law may refuse to act on behalf of a client in special circumstances which in his opinion would render it difficult for him to maintain his professional independence or otherwise make acceptance of such professional matter incompatible with the best interest of the administration of justice this position could have been averted."

In the case concerning the abduction, extortion and murder of Sadeep, Eardly Perera or any other lawyer would not have any special circumstances which in their opinion would render it difficult for them to maintain their professional independence by appearing even for the main suspect. The clergy who led the demonstration on that day at Kalutara and the crowd that went berserk should ask themselves and must answer how a demonstration supposedly peaceful could suddenly be violent and damage private property including the motor vehicle of Mr. Perera. One may argue that it was in this case the victim was an infant child whose innocent picture appeared in the front pages of newspapers that made the public react spontaneously. How many Catholic priests in Jaffna would demonstrate against the mobilization of children by the LTTE for its infamous 'Baby Brigades'. Similarly how many Buddhist priests in Colombo would demonstrate for the destruction caused by indiscriminate killing of children by the Sri Lankan Army. How many members of the public and the members of the clergy would demonstrate when a politico runs to the police station and obtains the release of a local kasippu dealer who had been arrested by the Police. How many times have we seen the public demonstrating against politicos who are well known in the villages for protecting brothels, hooch, dens and narcotic dealers. It was a Parliamentarian from the Catholic belt who stated publicly that illicit hooch distilleries must be given licences as it was a cottage industry and the people have no employment. How many members of the clergy demonstrate against such outbursts by politicos.

The present situation in the country where especially the electronic media has carried out a virulent campaign against the legal profession and cast the onus on the profession for defending criminals, has not been answered by the sleepy Bar Association. The following letter is a classic example of the present crisis. Popular columnist Ginger who writes to the Island under the heading 'Morning Spice' has reproduced a letter written to him by a reader. It appeared on Nov.1 under the caption 'No provisions to charge lawyers for conspiracy'.

"I came across this letter addressed to me from a reader down Alwis Place of Colombo 13. I have refrained from mentioning his name for obvious reasons. I wonder whether the readers would be with him on the issue in question after reading it. It reads thus. A young married woman was gang raped and there was no eye witness and one of the accused turned state witness to give evidence. Here of course some lawyers appeared to prove the crime or innocence reasonable/justifiable? In another case two young girls were tied to a bed and raped and subsequently murdered. Here too some senior lawyers appeared for the criminals/rapist murderers, to defend and prove their innocence. Can't it be treated as if the lawyers aided and abetted the criminals. Are there no provisions in the Ceylon Penal Code to charge the lawyers for conspiracy. Now Ginger would not go quite as far as what the reader suggests. It is difficult to prove that a lawyer actually knew whether an accused was guilty or not though in many instances a lawyer can sense both guilty and innocence. A lawyer pleading in mitigation is one thing but a lawyer trying to protect criminals knowing them to be guilty is what could be considered moral turpitude. Is it for the Bar Association or is it the lawyers association that should go into such questions and set the standards to protect the good name of the profession."

To those members of the public who make discreet inquiries about the provisions of the Penal Code to charge lawyers who appear for rapists with abatement must be told that the concept of a pleader appearing for an offender shows that the society has evolved from a semi-barbarous state to a semi-civilized state. In a semi-barbarous state it was might that ruled. The accuser and the executioner were the same. With the advent of great religions the expiation of sin by confession and by pennance brought forth the theory that sinners could confess and prayer for forgiveness came into being.

The concept of a pleader appearing for another and defending the sinner or the offender was something that the civilizing process introduced to mankind. Therefore the concept of a learned person in the laws of the land appearing and defending citizens against the State and citizen against citizen is the product of a truly civilized society.

The greatest contribution the lawyer could make to society is not only to defend the freedom of the individual against tyrannical and oppressive rulers, but also to appear for the most unpopular causes. If a lawyer is a person who appears regularly in that Court and is quite well versed with the subject and his knowledge of jurispondence is sufficient to advise his client on that particular field of law and if his normal fee is paid, a lawyer with a conscience should not refuse to appear in a case on the basis that his client is a notorious criminal hounded by society or his brief, the bone of contention in an unpopular cause.

As much as a doctor of medicine is bound by the oath of Hippocrates to treat anyone who comes to him with any ailment or an injury sustained in a battle inflicted by the political enemy of the doctor or as much as the Catholic priest has to listen to the confession made by a traitor to the cause and the belief of the Catholic Church is bound by laws of the Almighty to let him confess without any outsider knowing about the confession, the lawyer is bound by his conscience and the Constitution and the Rules made by the Supreme Court to appear for such a person and to do justice to the cause of his client. The people do not want lawyers to be replaced by executioners and the law they administer to be replaced by the law of the jungle. This happened during the last insurrection. The ad hoc Kangaroo Tribunals decided the rights of the people within the shortest possible time. Partition cases which had taken nearly two decades were settled within the space of one hour. Other petty larcenies misdemeanours and other crimes set out in the Penal Code were settled within a few minutes.

The people who were under the rule of these misguided youth felt that justice has never been so quick and cheap. But how long did this last. Only till the people found out that innocent people have been punished for a crime that they never committed. The civil disputes that were settled were far from satisfactory. These elements in the Kangaroo Court decided to pass death sentences on people whom they thought were a threat to their 'Deshapremi Aragalaya'. It is said that the JVP at an emergency session had decided to liquidate all their political enemies. Vijaya Kumaratunga was one of them!

Demonstrating against crime and other heinous activities in society is one thing but demonstrating and damaging the vehicle of the lawyer who appeared for one of the suspects in a case which has whipped up the emotion of the people due to the fact that the victim was an innocent child is another matter altogether.

When the people of this country were hiding in fear of the 'unknown gunman' it was the lawyers and the lawyers alone that carried on the struggle on behalf of the people even at the cost of their lives to make this country a better place to live in! The then Bar Association continued its struggle and won plaudits of Associations of lawyers all over the world, when the Rule of Law took a holiday the lynch law took over. If the public continues this outrage against the lawyers for their role as defenders of freedom, then the Rule of the Jungle will replace the Rule of Civilization. This will be the saddest day to any person who value the civilized way of life.

I would reproduce the first few paragraphs from the annual report of the Bar Association of Sri Lanka 1989/1990 as a reminder to those who try to castigate the legal profession for performing their duty. They espoused a cause of the silent majority against the goon squads of the government and the unidentified gunmen of the DJV and JVP.

"The past year has, in the main, been one of continuous gloom for all sectors of the Sri Lankan community. It was the year of the worst bloodshed in the recent history of our land. It was a period when violence reigned virtually supreme over most of the country. It was a year of unparalleled fear of continued dislocation of normal life. It was a year which saw the undermining of the basic values of our society. "It was a year which witnessed the march of violence and anti-State subversion, met by organized groups which brought our society to the very brink of disaster, from which there has been some retreat in the later months. Disruption of work was the order of the day during this period. Everyone lived in fear of the gun. The writ of the unknown, faceless, threat held sway. The closing of shops and offices, at the delivery of a note by an unknown youth became routine. Hartal achieved a new clandestine meaning. Transport was crippled. The Health Services were brought to a halt. Not unexpectedly, the administration of Justice and the legal profession were not untouched by this advancing tide of threat and counter threat, of lawlessness, violence and disruption".

Can't judge a man by his talk or his smiles

The ever-smiling King Arthur, in a hurry met the Lady of the Presidium and objected to Kamal, the fair astute, Saxon being appointed General Attorney of her realm, "He is no Norman, he is no pagan, How can we get the political pottaniya through? "Whom do you recommend? then the lady asked. King Arthur could not think of a Norman pagan?"

He mentioned the name of a judge, not knowing the fact that the judge, thought a Norman, was not a pagan. The lady of the Presidium went abroad, signing the warrant appointing the judge. The tom-tom beaters announced the appointment, which was even not known to the fair judge. King Arthur had to desperately contact the lady through Bala, the magician, when he got to know that the judge was not a pagan. The Lady had no choice but a hobsons choice and appointed Kamal the Saxon to the relief of the majority. This is the latest adventure of the Smiling Saxon, King Arthur, Which reminded the lowly peasants of the ballad of yester year (Sinawen ho kathawen be maninnata miniha)' You cannot judge a man by his talk or by his smiles.

The Special Assignment

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