| by Shenali Waduge
( Views expressed in this article are author
own)
( December 30, 2012, Colombo, Sri Lanka
Guardian) The logic of declaring anything “independent” must be based on an
unwavering commitment to unbiased, devoid of discrimination and ethical
judgment in all cases whether they are associated with the 3 pillars of
governance or in private/public sector as well as in the daily affairs personal
or otherwise of the public. It has become a trend to evade the main theme of any
focus by turning issues into a political force thereby attracting an
unwarranted number of internal and external players making solutions all the
more difficult to reach and distancing any opportunity for rational thinking
and action. This politicizing of issues needs to surely stop for a country to
progress. The discussion raises the key question of how “independent” the Sri
Lanka Bar Association is and how “politicized” is has got. In all matters of
integrity conscience and action must work in cohesion.
The recent turn of events exposes the facts
that there are matters that need to be addressed before anyone can exercise the
act of pointing fingers. It was in 2001 that the Transparency International
survey declared Sri Lanka’s judiciary and police one of the most corrupt in
South Asia with 100% respondents claiming that they had to pay bribes to the
judiciary. A decade on has that scenario changed or does it remain the same or
has it reached far worse conditions?
No amount of laws, legislations, bills or
what not can change a system of culture where all practitioners and enforcers
including the public are corrupt or indulge in some form of corruption. There
is hardly a difference in the guilt of a “taker” and a “giver”. The situation
is made worse when apex bodies function in ways that dilute the aspired
justice.
The Sri Lanka Bar Association has chosen and
elected a politician as its President. While it is the right of any attorney to
stand for election it questions why no one considers some prima facie facts.
· How “independent” is a Bar Association when
it elects a Politician as its President? What level of “independence” can this
President/Politician exactly deliver and whose priority does he “work” towards
– those that pay him (his clients) or those he takes a salary from (the
Public)?
· If the President of the Bar Association is
a practicing lawyer who is paid by clients to act in the best interest of the
client what is his obligation as an MP towards the public? As members of the public do we know which hat
he is wearing and when and how far is he able to act in fairness to the public
by virtue of his duty as a Parliamentarian while also satisfying his client who
is paying him exorbitant fees to protect the clients interest?
· How “independent” is a Bar Association when
its elected President is not only drawing a salary including perks/privileges
given by the State at taxpayers cost while also functioning as a practicing
lawyer charging fees for his counsel?
· How “independent” is a Bar Association when
that President is not only a member of the Main Opposition political party
whose job is to oppose the Government and who is also entitled to use his
parliamentary privileges as immunity in all that he says inside Parliament?
· Parliamentary Privileges act declares that
“No member shall be liable to any civil or criminal proceedings, arrest,
imprisonment, or damages by reason of anything which he may have said in Parliament
or by reason of any matter or thing which he may have brought before Parliament
by petition, bill, resolution, motion or otherwise” –
http://www.parliament.lk/about_us/powers_privileges.pdf - how adversely will
this affect the public if the President of the Bar Association takes the side
of his client over the interest due to the Public in view of his being elected
a MP? 3000 members of the public have been robbed of 26billion and 20 of these
victims have committed suicide – where is the justice for them and being a
member of the legal team for the accused is not the trust of the public
compromised?
·
There is a strong case of conflict of interest when the President of the
Bar Association is a member of the legal team of the Golden Key case where
members of the public have filed a case against it. The same legal team now
represents the chief justice. This questions where the interest of the Bar
Association President lies and where his interest should be as a priority?
·
The President of the Bar Association has also used that parliamentary
privilege by challenging a decision taken by the Speaker and filing a case by
the Bar Association of Sri Lanka against the Parliamentary Select Committee
that is probing impeachment against the Chief Justice. The President of the Bar
Association
· This instance calls to mind the situation
in Italy where Silvio Berlusconi’s attorneys are members of parliament. What is
the situation when defense lawyers/parliamentarians work towards making laws
that protect their Premier (client)?
As a politician it goes without saying that
the primary interest is to build a support base of potential voters to secure
electoral wins. It is no secret that while those that end up winning elections
from the rural Sinhala Buddhist vote base, the next strategy is to always flirt
with the minority votes totally neglecting the voters that brought them into
power.
The judiciary at present is plagued with a
suite of calamities, made worse has been the recent results of the law college
entrance exam where it is alleged that some malpractice has taken place which
has resulted in an unprecedented number of a minority race securing the top
slots and gaining over 100 seats to enter the law college. If there is public
opinion coupled with aggrieved students as well as young lawyers objecting to
the results, why is the Bar Association especially its President silent not having
released a statement in this regard?
Given that there are objections the rightful thing to do is to call for
an independent inquiry while suspending admissions given that there may be a
need to redo the paper if it has been leaked?
Since the exam results concerns a minority,
is the Bar Association President silent because of his interest in securing his
political role or is there other reasons? We do not know because he is wearing
too many hats all conflicting with one another at various times given the
sensitivity of the positions held. The investigation team should be able to
divulge the truth. It is the impartiality that we expect from the Bar
Association especially that of its President.
Then there is the revelation by 2 former
judges at the Annual General Meeting of the Judicial Service Association on 22
December 2012 that must have certainly piqued all the proud legal fraternity
present. Their speeches only confirmed what many amongst the public already
accuse the judiciary of and whilst the executive and legislature have been
central to most of the public condemnation in the past it appears all is not
fine in the annals of the Judiciary as well. Sleeping on the job apart when an
innocent man is sentenced to prison by a judge simply to punish the lawyer
appearing for him just does not fit the profile of a practice that professes to
be “independent” and upholding justice!
Sending a man to prison because the judge did
not like the lawyer representing him is a major offence committed by this judge
- Who is he, why was he not punished or exposed and is he still giving similar
judgments and why has he deserved a promotion? Has this prisoner been released
or is he still languishing in prison, what about the compensation he should
deserve for being sent to prison for no reason, how unfair to use the plight as
an evening speech example when the judicial system should have addressed this
miscarriage of justice immediately – where is the justice from the legal
fraternity shouting for justice?
Therefore if there is misconduct of justice
taking place in Sri Lanka’s judiciary and its services, should its house not be
cleansed before it points fingers?
The President of the Bar Association, who is
also a member of a political party and an opposition MP is not the only
parliamentarian practicing law. There are many in both government and
opposition and it does question their ethics in delivering their services.
People do wonder if it is because of the
Justice Minister that the animal welfare bill, the anti-conversion bill remains
in embryo and is there also a reason why the Law Commission website is not
functioning? Ideally no politician should take up positions that would give
rise to conflicts of interest – as “learned” men standing for elections they
should have a conscience to know the adverse effects.
In the Philippines Section 14, Article VI of
its constitution clearly says that ‘No Senator or Member of the House of
Representatives may personally appear as a counsel before any court of justice
or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies”. It is not difficult to see how conflicts of interests and bad
practices can result when those having access to information not privy to
others hold portfolios that leave little room for ethics or good governance.
It is the right of anyone to stand for office
but 11,000 attorneys of the Sri Lanka Bar Association should have known better
than us the amount of conflict of interest likely to rise in electing a
politician as its head.
Having said that it is left for that person
to realize himself before being pointed of the likely conflicts of interest and
to choose his priority and opt to bow out of one gracefully for the chemistry
of a politician, as a practicing lawyer and holding the portfolio of the
President of the Bar Association does not work too well and goes against every
norm of democracy that even the Western critics should have noticed and should
have publicly opposed and we wonder again why no one has pointed this out
earlier!
All these spell the need for a comprehensive
inquiry of the judiciary and legal profession coupled with the need for a
national media commission that would eventually help drive proper governance.
When these vehicles start performing as they should the other organs
automatically will fall in line and the people will be better informed not to
elect corrupt politicians.
The “independence of the judiciary” happens
when all those in the judiciary function without bias, without malice, without
political agendas. But how many of our leaders exactly follow such practices is
again questionable – those that we know who have neither conscience nor
integrity have no moral right to be pointing fingers.
Simply put the Sri Lanka Bar Association is
nothing but a politicized body if it continues to elect practicing politicians
as its Presidents – the conflicts of interests are clearly visible and nothing
anyone can deny. Assurance of personal behaviors/actions cannot warrant the
leadership mantle of an apex body as the Sri Lanka Bar Association to be held
by a politician – whether he is in Government or Opposition. It is detrimental
to the vision/mission of that body to have a politician cum practicing lawyer
holding forte.
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 ( December 30, 2012, Colombo, Sri Lanka Guardian)...){kind=link}