The trust in commonly accepted norms and principles and laying these norms and principles by way of commonly accepted laws has been done with the view to prevent the possibility of interference by individuals in tampering with the basic rules of a society in order to achieve their own ambitions.” ...........................................................
By Basil Fernando
(December 14, Hong Kong, Sri Lanka Guardian) A lawyer’s organisation has been formed in Sri Lanka under the name LAWERS FOR DEMOCRACY with a view “to emerge as a forceful voice to discharge the social obligations and the responsibilities of the lawyers for the protection and advancement of democracy, rule of law and human rights.” They have declared a charter for the purpose. The lawyers have recognised “that the legal profession in the country need to play a serious role at a time of crisis where due to the lack of respect for democratic values, rule of law and human rights the legal profession itself has been undermined.”
This organisation attempts to revitalise the positive and important role of the organisation for lawyers fighting for democratic values and thereby restrengthen the rule of law and human rights in the country. Indeed, the formation of the organisation at this time is itself recognition of the deep crisis of the rule of law that the country has been facing for many decades now. The rule of law has been challenged from many fronts. The country’s political system based on a system of excessive power placed in the hands of the executive president virtually undermines the parliament as well as the judiciary. The Sri Lankan president enjoys powers similar to those of monarchs of feudal times. All checks and balances that are recognised either within the American or French styles of presidency are both ignored in favour of a type of absolute power which is akin to the powers of authoritarian rulers and dictators.
When the ruler undermines the law
In modern times the structure of a democratic state is based on the recognition of the rule of law which means that all, including the highest officer of the state is under the law. No one is above the law is the basic premise under which the state is organised ever since the absolute monarchies were abolished in France, the United States and Britain. The principle that everyone is subjected to law is a binding principle that guides all aspects of an organised life within a system that is based on law.
What has been asserted in Sri Lanka, particularly since the adoption of the 1978 Constitution, has been the idea that the president can determine which laws can operate within the country and which laws can be dispensed with in terms of various circumstances. This power of the president to be above the law and also to decide which laws can be suspended without following any sort of procedures acceptable within a rule of law system virtually undermines, the confidence in the law in all walks of life.
The idea that the security of the state requires that the president should have the powers to suspend laws is based on a concept that the law itself is a threat to security. If the law itself is regarded as a threat to security there cannot be any guide as to what are the fundamentals around which the security of a nation could be protected. The granting of arbitrary powers to a president to decide which measures could be adopted and which measures can be undermined for the purpose of protection for the citizens virtually leaves the matter entirely in the hands of an individual. The very notion of the rule of law is based on the idea that no individual, however intelligent or however good that person may be should be trusted with absolute power is based on the recognition of human weaknesses and the propensity of human beings to abuse power whenever there is occasion to do so.
The trust in commonly accepted norms and principles and laying these norms and principles by way of commonly accepted laws has been done with the view to prevent the possibility of interference by individuals in tampering with the basic rules of a society in order to achieve their own ambitions.
Lawyers in a lawless society
What has happened in Sri Lanka has been to deviate from this fundamental notion. Deviation from this fundamental notion cannot be done without facing the consequences of the abandonment of such principles. The result has been that today in all areas of life there is uncertainty about the law. The rulers themselves are uncertain about which laws are operating in the country and as a result the judges, lawyers, bureaucrats and everyone else that had the duty to enforce the law are living in a situation where they themselves are not sure as to what the law is at a given time.
This operates worse in terms of the legal profession which has the duty to intervene with the authorities such as the police and other authorities in order to point out to them the limits with which these authorities have to operate. When, in fact, there are no clear limits laid down by the law itself, the lawyers are in no position to point out the limitations these authorities have in carrying out their obligations. A police officer that engages in arrest or in taking actions relating to detention and interrogation of persons are under normal circumstances bound by sets of laws. However, within the context of Sri Lanka the laws by which the police officers are to be guided in the event of arrest, detention and interrogation are no longer clear at all. The arrest can now be done by way of abductions or engaging in all kinds of secret procedures. No one is actually sure that the action taken by a particular police officer or any other state officer exercising the right of arrest have, in fact, have done this task within the framework of the law.
Assassinations after arrest
The situation becomes glaringly clear in terms of dealing with the right to life. It has become quite an accepted norm in Sri Lanka in the recent decades to assassinate an arrested person under any pretext to justify such an assassination. These assassinations are called by various names such as disappearances or extrajudicial killings or very often as actions taken in self defence in order to protect the lives of the police officers themselves. When the very fundamental norms of protection of life itself is no longer guided by strict laws known to everyone, naturally there cannot be any form of protection that is guaranteed within this kind of governance.
When the fundamental norms of arrest, detention and interrogation and the protection of life are no longer clear at all and are not made visible through laws known to everyone then, the very structure of criminal justice cannot operate within a framework of the rule of law. That is the extent of the crisis that the Sri Lankan legal system has been facing in recent decades.
Challenge to very survival of the profession
Under such circumstances what then is the role of the lawyers. This will be the challenge for the legal profession itself to grapple with in the time to come. If these problems are not grappled with the lawyer’s role becomes an ambiguous one and in most circumstances what that means is that the lawyers do not have any role at all. A lawyer will try to assert his role before the police or military may well be told by the concerned officers that the rules on which the lawyers insist no longer apply at all; and that they are obliged to reveal anything about the activities that they do. This, in fact, is the situation that the lawyers throughout the country is facing and this have been going on for many decades.
A timely move
The formation of a new organisation for the defence of basic norms and principles and values of the legal profession is very much a timely task. However, the challenge is a daunting one. This will require enormous intelligence on the part of the organisers of the new movement to face the problems that are today faced by the legal profession as a whole.
What the legal profession is faced with today is, without doubt, is about the very survival of the legal profession itself. At the moment this profession has been so undermined that it does not seem to be able to play any significant role in terms of the protection of the rights of persons in relation to arrest, detention, interrogations and the right to life itself.
Defending fair trial
Bound up with this is the role that is lost about fair trial. What indeed is a fair trial in terms of the Sri Lankan context? When the role of the accuser and the judge is played by the police or the security officers themselves to the point of the very disposal of life itself, the existence of a notion of fair trial within the society is very much in doubt. Besides this, of course, are the more traditional problems such as delays within the legal profession and the corruption that is associated with the system of justice in Sri Lanka. All these are problems that threaten the very existence of the legal profession.
Will the new association and the lawyers who have taken upon themselves the responsibility to face these problems prove themselves capable of dealing with these enormous issues? We would hope that they would be equal to the task and the society needs to give them full cooperation in dealing with these fundamental problems. These are not just the problems of the legal profession but indeed, the problems of the very survival of the society itself.
-Sri Lanka Guardian
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