The bar's message to the president

By Kishali Pinto Jayawardene

(February 28, Colombo, Sri Lanka Guardian) At certain points of time, the Sri Lankan Bar surprises itself. One such instance is this week's concluded elections to the Presidencyof the country's Bar Association which former Attorney General Shibley Aziz, PC won with an unequivocally clear majority of 482 votes over his rival, Palitha Kumarasinghe, PC.

Presidential intervention into the electoral process

The elections took place in an atmosphere that was even more rudely politicized than on most previous occasions. Un-contradicted news reports before the elections were to the effect that President Mahinda Rajapaksa had summoned a coterie of Sri Lanka Freedom Party lawyers and directed them to throw the full weight of the party behind the now defeated candidate. Kumarasinghe was, in fact, one of those lawyers who had accepted appointment from President Rajapaksa to the now discredited constitutional commissions some years back when the President disregarded the mandatory precondition that approval must first be sought and obtained from the Constitutional Council.

The President's pre-election directive went so far as to request another contesting candidate from the Avissawella Bar to withdraw so as to prevent the split of votes. Indeed, one of the more humorous tales of this election was the overwhelming majority that the Avissawella Bar (presumably and rightly angered by this directive) returned for former Attorney General Aziz. Taking lawyers themselves as well as observers by surprise, the outstation Bars in fact, all returned majorities for the former Attorney General even though the contest was harder fought in the Colombo Bar due, in part, to vigorous lobbying of private sector legal professionals by those, including senior lawyers, backing the defeated candidate. These tactics have now become a source of much ribaldry among the legal profession.

Why the elections are important to the public

So, in response to the many who predicted that these elections will follow the trend of January's Presidential elections, the outcome came as a pleasant surprise. At yet another level, the President's unsuccessful intervention tells us why the perception entertained by some that elections of this nature are of interest to the legal community alone, must be immediately discarded.

On the contrary, having a partisan Bar Association is crucial to a political leader striving to impose a particular manner of inevitably undemocratic ruling on the people. In other countries, including India, the Bar Association has been a potent force in reining back abuse of power. We saw the power of such interventions in Pakistan where the collective strength of lawyers virtually unseated a dictatorial President when he attempted to interfere beyond a point, (intolerable even in the context of that country's turbulent history), with the judiciary. Recently, this columnist met a senior Pakistani lawyer and, in passing, questioned purely for mischief as to whether, given the trouble and turmoil currently prevalent in the country, it may not have been better to have had a firm albeit undemocratic hand on the reins of governance. This query was met with a blank look of amazement and a firm rejection of this proposition as follows; 'No, nothing could have been worse than what we suffered under Musharraf'.

Some historical markers as to past travails

Compared to our South Asian neighbours, Sri Lanka's Bar Association has been tame even during the few rare periods in which its leadership struggled with all good intentions to meet challenges to the Bench, the Bar, the legal community and the public.

During the decade of the Sarath Silva Court for example, the Bar surprised itself (equally as much as it did this week) by returning Mr Desmond Fernando PC to the leadership. The challenge then was posed not by an unscrupulously all-powerful President but by an unscrupulously all-powerful Chief Justice who had bent the Bar to his will to the extent that, not only was there noticeable silence regarding the internal politicization of the judiciary but at times, the Bar Association was virtually reduced to dancing to the strings that were pulled. One of those instances was when a former President of the Bar was audacious enough to demand, when the former Chief Justice was being publicly criticized, that contempt powers should be summarily used against such critics.

On that occasion, the Editors Guild of Sri Lanka and professional media groups reacted angrily to this demand. The Bar Association was reminded that it should call for a judiciously balanced exercise of contempt power which takes into account modern standards regarding freedom of expression. Later, during Mr Fernando's Presidency, a draft contempt law was prepared by a team of lawyers, approved by the Bar Council and forwarded to the government. This was not, however, taken further by the government.
Other challenges during this time included the splintering of the Judicial Service Commission (JSC) due to Justices TB Weerasuriya and Shiranee Bandaranayake stepping down from the JSC due to 'matters of conscience' with the former Chief Justice. The publisher of the Bar Association newsletter, in fact, refused to publish the particular issue expressing the disconcertment of the Bar at the internal clash within the JSC. The publisher's refusal was due to his stating that he may be subjected to contempt if he publishes. The newsletter was published elsewhere on that occasion.

With the change in the Presidency of the Bar Association, such esoteric matters such as contempt of court and the discipline of lawyers and judges were forgotten. The Bar then concerned itself with hosting largely useful extravaganzas such as a Law Week and organising social outings for its members. Worse, it turned the proverbially Nelsonian eye when former heads of the Bar and other lawyers accepted unconstitutional Presidential appointments to the 'constitutional' commissions. This was essentially as bad as lawyers who had not read the Constitution, appearing on national television during the voting process in last month's Presidential elections and misadvising the public that a citizen who is not registered to vote cannot run for election. When the office of one lawyer was attacked and a grenade thrown at the house of another, the Bar was content merely to issue statements of dismay.

Positive and apolitical interventions needed

So the challenge before former Attorney General Shibley Aziz is not merely to have won the election against seemingly insuperable political odds. Instead it is to use his Presidency to restore some lustre to a profession that is currently scorned by large sections of the Sri Lankan citizenry. It was very recently that the previous leadership of the Bar Association despicably compromised itself by appearing on national television openly supporting President Rajapaksa in the run-up to this year's Presidential elections.

The need for the Bar to be removed from this kind of political partisanship, (as distinguished from appearing in court for a particular political party or having personal preferences for one party or the other), is never greater than now. In returning former Attorney General Aziz to the leadership of the Bar, political rulers in this country have been cautioned not to interfere with the electoral processes of the legal profession. This is a message that they should take very much to heart.