In the Bar Council elections held this week the lawyers voted overwhelmingly against a candidate who was openly promoted by the government. Shibly Aziz won the election with a majority of 450 votes against Mr. Palitha Kumarasinghe PC.
For over a long period the legal profession in Sri Lanka has been under serious attack. There has been a widespread feeling among the lawyers that the leadership of the Bar Association has come under the direct control of the government and was, in fact, cooperating with the government in its suppression of the profession. This vote clearly shows a widespread reaction against the undermining and the harassment that the profession has been facing. It also indicates a shared desire for change.
The problems facing the legal profession in Sri Lanka come from many factors. The most important factor is the undermining of the independence of the judiciary. The displacement of the notion of the separation of powers in the 1972 as well as the 1978 constitutions is the basis for the undermining of the judiciary. The introduction of the executive presidential system has placed the president of Sri Lanka above the law and not accountable to the judiciary. The application of this principle since 1978 has fundamentally disturbed the functioning of the judicial system. The presidential system has overpowered the judicial system and this disturbance is felt profoundly in every aspect of the administration of justice.
The political system that has developed in the country on the basis of the 1978 Constitution has limited the possibilities of justice in all areas of life. The subordination of the policing system by the political system has drastically reduced the capacity of the police for the conduct of investigations into crime in a credible manner. Sri Lanka has now acquired a bad reputation internationally due to pervasive impunity. Wherever the government is involved in crime directly or indirectly, the police do not have the will and the capacity to investigate. Non-investigation of crimes has seriously paralysed the criminal justice system. When the criminal justice system is critically damaged in this manner the role of the lawyer is diminished in many different ways. The actual capacity of the lawyers to provide services to their clients as they are required to do within a rule of law system is no longer available to the lawyers in Sri Lanka. Political abuse and corruption combine to defeat the purposes of justice in all aspects of life.
In the area of civil law also, the interference is so glaring that public faith in seeking justice through the courts has been diminished in many ways. There is widespread cynicism that results in the belief that resorting to corruption and criminal elements may bring better results that resorting to the law.
In the area of constitutional law the possibilities that exist to a citizen are extremely limited. Virtually judicial review as it existed in the period prior to 1972 has disappeared. In the area of administrative law itself belief in due process has been lost to a great extent.
The arbitrary use of the national security laws on a large scale have brought about so many limitations on the laws relating to illegal arrest, illegal detention and the right to fair trial. These limitations have brought about enormous restrictions on the services that the lawyers can provide for the citizens.
Added to all this is the direct harassment against lawyers. Lawyers who act on behalf of the opponents of the government have been subjected to public condemnation as traitors. The Ministry of Defense in particular targets lawyers who appear for clients on human rights related matters. The ministry website has been used to attack the independent practice of the legal profession. The lawyers who fight against impunity are harassed and intimidated by the police, military and other powerful forces.
The overall result is that the legal profession has become a threatened and endangered profession in Sri Lanka.
It is under these circumstances that there is anxiety among the lawyers as well as citizens about the future of the independence of the judiciary, due process and the freedom of the individual in Sri Lanka. The voting in the Bar Association election on this occasion reflects this tremendous anxiety among the lawyers as well as the general population.
It is now the task of the new leadership of the Bar Association to enter into serious consultation with the lawyers throughout the country to develop a comprehensive strategy in dealing with the defense of the independence of the judiciary, the protection of the rights of citizens and the defense of their own profession. The new leadership is faced with a great responsibility. Perhaps at no other time has the leadership of the Bar Association been placed with such a responsibility as the one that has been placed on them now. It is to be hoped that the lawyers will use their collective wisdom to develop a discourse that is proportionate to the resolving of the problems their profession is faced with.
