Several newspapers reported on 29 November 2004 that the Bar Association of Sri Lanka has taken a stand to instruct lawyers not to appear for those persons accused of the murder of a Colombo High Court judge. Its president, Ikram Mohamed, is reported to have said that although every suspect has the right to retain a lawyer under Supreme Court regulations, since the murder of Justice Ambepitiya was an attack on the judiciary, lawyers must take a personal stand on the case. “We cannot ask a lawyer not to appear, but they have a personal duty and every lawyer should take up a personal stand,” he is quoted as having said.
This position is both irresponsible and unprofessional. It amounts to a call to deny the basic right of citizens to a fair trial. The Asian Human Rights Commission (AHRC) strongly condemns any statement that denies, either explicitly or by inference, the right to fair trial of any person. The right of representation does not derive from Supreme Court regulations, but from universal norms. It is a very strange position for an organisation representing the lawyers of Sri Lanka to propose that citizens should be denied this right. It is the same as if a medical association proposed denying treatment to a patient or group of patients on the grounds of a perceived slight against their profession. Such a stand is nothing short of barbaric. To deny fair trial to the accused will in fact be an insult to a courageous man who held the scales of justice at some of the most difficult times in Sri Lankan history.
What kind of response does this killing deserve? Certainly not the denial of due process to the accused; rather, what should be done is to ask basic questions about what led to the murder, and to address these seriously. For the Bar Association, these should relate first to the lapse in security around this judge in particular and the judiciary in general. Although the shooting resulted from a security failure, to date nobody has been held to account for this shortcoming, and the Bar Association has been silent on the matter. Secondly, questions should be asked about the criminalpolice nexus, which has made murder easy in Sri Lanka. What measures should be contemplated to break this nexus, and particularly to end the involvement of the police in drug trafficking? Answers to these questions require thoughtful examination of jurisprudence developed in other countries. Thirdly, the lack of witness protection in Sri Lanka is a key issue. Witnesses commonly reverse their statements after receiving threats or favours, sometimes both, from the accused. This is the main reason for unsuccessful prosecutions in Sri Lanka. Many countries have developed laws and schemes for effective witness protection, regionally most recently in Thailand. However, there are no provisions for the security of witnesses in Sri Lanka.
These are issues that any lawyers’ organisation seriously concerned with the integrity of its profession would be interested to address. It is well known that lawyers in Sri Lanka are themselves very often intimidated from challenging police involved in crime. Where they cross the line to do so, both criminals and the police act in close collaboration to silence them. As a result, lawyers may refuse to take cases out of fear of the consequences for themselves personally. When Anthony Fernando brought his fundamental rights case to the Supreme Court even very senior lawyers bar a few refused to appear for him. There are also serious allegations that some lawyers are themselves conspiring to be a part of the criminalpolice nexus.
The killing of Justice Ambepitiya was made possible not from the strength of the criminals but from the weakness of the institutions in Sri Lanka that are supposed to maintain the rule of law. Until this systemic impotence is counteracted it will not be possible to have an independent legal profession or to ensure security for judges, lawyers, investigators and complainants. The AHRC therefore urges the Bar Association of Sri Lanka to look into these matters rather than make counter-productive suggestions that criminal suspects do not deserve legal representation. Instead, the benefits of jurisprudence developed in many other countries should be brought to Sri Lanka and public opinion motivated to find lasting solutions to the problems besetting the judiciary there.
