With the subjugation of the courts to the dictates of the executive since the 1978 Constitution, Sri Lankan lawyers have been facing tremendous angst. Over the past 28 years they have endured significant pressure, which has forced them to withdraw from undertaking their duties professionally. A frame of mind has developed whereby they feel unable to discharge basic duties for their clients, particularly in disputes against the state. As well as unable, lawyers are equally unwilling to undertake such pursuits. This has led to the absence of any will to fight, which is a key trait of the legal profession.
Today’s legal profession is one from which persons have withdrawn completely or partially. Those who have withdrawn partially are active only as persons trying to make a living. There is no longer any pride or conviction in belonging to a noble profession. A researcher interviewing lawyers recently was left with the impression that lawyers are willing to adjust to anything and will not protest any inconvenience or humiliation the courts may expose them to, for instance attending a court in which a judge will arbitrarily choose the time of sittings. The official time may be 9:30am but the judge may begin at 1:30pm. Or lawyers may accept without protest when evidence in a case is taken for 15 minutes and thereafter the case is postponed for several months. In fact, lawyers are unwilling to push for speedier hearings for fear that this may cause the case to be postponed for an even longer period. ‘Wiser’ lawyers may tell their client that his cause is better served by accepting any whims of the judge.
Similarly, most lawyers are unwilling to take on cases of public law, where the judge may be placed in the embarrassing position of making judgments against the state. Pressing for such a judgment may antagonize the judge. Again, ‘wiser’ lawyers will therefore advise against such assertion; it is seen as futile and even counterproductive.
The prevailing feeling among the legal profession today is that to be too serious over one’s obligations to clients or the public is only a trait of someone who does not understand ‘reality’. The accepted principles by which most lawyers conduct their duties are cynicism, accepting the various whims of judges and an avoidance of serious social or political issues. For this reason, if lawyers are asked to represent a client challenging the president’s recent appointments to the Court of Appeal and the Supreme Court on the grounds of unconstitutionality, the common response would be negative. Lawyers are concerned that they must appear before the same judges on other matters. Another response made by lawyers is that whatever applications are filed, and whatever their validity, the ultimate outcome will be negative for extraneous reasons. Other lawyers respond that the cases will not be resolved speedily and the issues themselves may cease to be relevant by the time a judgment is given.
The attitude of the legal profession has a direct impact on the justice system. At present the courts are unable to maintain the rule of law, and lawyers are not contributing to the revival of confidence in the courts. In fact, there is an overwhelming consensus that neglected courts may better protect the interests of powerful individuals in the state and society. According to a study conducted by the Ministry of Justice in 2004 on court delays, a primary cause of the delays is the non-compliance of state officers, particularly the police, with their obligation to attend court.
President Rajapakse’s authoritarian appointments to the senior judiciary, in violation of the 17th Amendment, will reinforce the paralysis of the legal profession. By accepting the state’s blatant attempts to dominate the court process, lawyers are demonstrating their extraordinary capacity to adjust and adapt, as well as their lack of professional pride and integrity. In fact, many lawyers may take advantage of the situation for unscrupulous gains, which under normal circumstances would result in disciplinary action. Under the present circumstances however, there can be no such thing as disciplinary action according to the rule of law. This is therefore a time when the unscrupulous can thrive.
