In Sri Lanka the legal profession is very much a threatened profession. The recent grenade attack on September 27 on the residence of senior lawyer, Mr. J.C. Weliamuna, once again brought to the notice of everyone how much the profession has been undermined and how easy it is to attack lawyers. Almost a month has passed since the attack and there have been no arrests. Mr. Weliamuna had to leave his home and move to a safe house where he has to take enormous precautions for the security of himself and his family. This is despite of the Bar Association of Sri Lanka holding a general meeting to condemn the attack and their call upon the government to ensure immediate enquiries. Besides this there was a protest in the streets by lawyers and civil society. At the international level almost all major organisations dealing with human rights, anti corruption and democracy intervened with the government asking it to ensure effective investigations.
The weakening of the legal profession is a byproduct of political change in the country. The executive has acquired enormous power to the detriment of the rule of law and the legitimacy of the public institutions. The entire legal process in Sri Lanka which was based on due process principles has been severely suppressed. As part of the ever increasing power of the executive the police, the secret services and the military have acquired powers which conflict with the rule of law and due process.
Since the measures that were adopted to suppress the 1971 JVP movement the use of emergency regulations, national security laws and anti terrorism laws have expanded for several decades and virtually displaced what used to be called “the normal legal process in the country.” Virtually the younger generation has not even had a chance to live under that “normal process.”
The overpowering police institution is not regulated by a system of command responsibility. In fact, it has been politicised and completely controlled for political purposes. Therefore the police and secret services can be used to violate any persons rights if some politician or political group associated with the government wants to do so. When individuals are attacked through that process the call for investigations and even promises of investigations bear little or no fruit.
On the other hand if the suppression is done by any private party with the help of the criminal underground this also cannot be effectively investigated as there is a police, political and criminal nexus throughout the country. The system within the police that was formally well organised and well trained to deal with sophisticated crime cannot now do so due to this new relationship which has emerged between law enforcement agencies, underground criminal elements and the political establishment.
Everything is not completely lost. The legal system has not been completely crushed. The adjudication processes through court systems have not been completely destroyed but only undermined. There is still a struggle between the new processes of repression mentioned above and the countrys legal system and institutions which have a long history.
The lawyers and judges are still important professionals. Almost everything still has to go through various legal processes despite of the fact that these processes may have succumbed to executive pressure and corruption. However, the contest between the forces that support the rule of law, independent legal institutions, legal processes based on due process and the independence of the judiciary still exist and to some extent are still forceful.
The question that is now faced in the country is as to whether the forces of repression, which at the moment have the upper hand, will be able to destroy those who still support the rule of law. The attacks on lawyers and witnesses are part of the overall strategy to crush the forces that support the rule of law and due process. It is a very real contest and the forces that support rule of law and due process, which in the recent years have been severely battered, need to fight back vigorously if the contest is to end in their favour.
This contest is not peculiar to Sri Lanka alone. In several neighbouring countries like India and Pakistan this battle is also being fought. The lawyers movement in Pakistan which came to be admired throughout the world is one clear example of this contest and the possibility that the forces that support rule of law and due process can, in fact, gain the upper hand until they are able to finally defeat the forces of repression.
The resolution passed by the Bar Association of Sri Lanka was the first resolution of its kind. The very fact that it was not possible to prevent a common approach among the lawyers to deal with their problems is itself an indication that there is a fighting spirit within the legal profession and also within civil society which responded to the call for support.
The Bar Association should not let this moment pass without a full mobilization of itself to push for the strengthening of the profession, the rule of law and due process within the country. It is not enough for the Bar Association to ask for an inquiry into the grenade attack but it should ensure that an effective investigation and prosecution happens as soon as possible.
Further the Bar Association should study the process by which the police have managed to get the upper hand at the Magistrate’s Courts and other criminal proceedings to the detriment of the professional rights of the lawyers. The forces of repression have been trying to promote corruption as a way to undermine the legal profession and due process often at the level of the Magistrate’s Courts, which are the institutions within which the rights of the citizens find their most vital contests. The overpowering presence of the police needs to be defeated. It is not possible to break the criminal/police nexus without the role of the lawyers to assert themselves in the courts, particularly the Magistrate’s Courts. The Bar Association needs to develop its own strategies to strengthen the lawyers capacity to function with dignity and without fear.
The grenade attack was a serious attempt to reinforce the existing fears among the lawyers and introduce further intimidation. It was not an isolated act but more violent expression of many dormant forms of intimidation that are exercised routinely throughout the country. The forces of repression want to create a timid legal profession. How this should be fought against is not merely important for the lawyers but the country as a whole if it is not to go under a political tsunami masterminded by the forces of repression.
