Focus on Rights

Where the emperor continues to be without clothes
Some fairly illuminating responses to the recent calling upon President Chandrika Kumaratunga by a delegation of representatives of Sri Lanka's Bar Association in order "to discuss matters pertaining to the legal profession" have been evidenced in the weeks since then.

In the first instance, we had Hong Kong's Asian Human Rights Commission thinly calling the delegation to account for its absurd pontification and stressing instead, that it should defend the independence and credibility of its profession by taking an active part in maintaining the rule of law, which requires "a concerted effort on the part of a professional body that represents the country's lawyers....."

In other instances, the outpourings of protest appearing in the 'letters to the editor' pages of daily newspapers of individuals outraged by either personal experiences in court as litigants or exhibiting general anger, have increased. We had been facing a covert crisis in the legal system and the legal profession for quite some time. Now, it appears that this crisis is increasingly manifesting itself in the public arena.

The problems bedevilling the legal profession in this country are many. Essentially, we still have to bring the law closer to the ordinary people whom the law is, after all, meant to serve. Lawyers are perceived as being occupied only in their individual practice and are not concerned about the larger issues of social justice; they are involved in dilatory practices inside and outside court which result in the denial of justice and the deterioration of the reputation of the Bar; they charge high fees when they lack the required professional competency and quality; they are involved in bribing officials involved in the process of decision making involving even judicial officers in the minor judiciary in order to secure a particular result in their case and they use undesirable ways and means to solicit clients.

The whole presents an overwhelming contrast to the requirement prescribed by successive Ordinances and Acts that only persons of "good repute and of competent knowledge and ability" could be enrolled and admitted as attorneys at law. Inevitably, one can only question the practicality of this condition when the basic requirement as to good repute is not satisfied by many at the very head of institutions meant to administer the rule of law.

From a different perspective, the influx of numbers into the profession has meant that within the legal profession, there prevails what could be kindly referred to as the "survival of the fittest" mentality. A rigidly hierarchical legal profession has impacted in a particularly negative sense on women lawyers as well as economically and socially underprivileged lawyers. This "crowding" of the legal profession has resulted in the professional lawyer of today being very different in a sense from his or her predecessors who were well versed not only in the formal law but in subjects like philosophy and history which enabled a holistic approach to a legal problem. Modern day lawyers have, as is indeed acknowledged by them, neither the time nor the inclination for wider social accountability let alone love for the law itself, fostering inevitably a base preoccupation with money and money alone.

On a previous occasion, this column has had reason to reflect on the manner in which Sri Lanka distinguishes itself even further from other jurisdictions in South Asia, (notably India and to a certain extent, Pakistan and Bangladesh) in that, while these countries also inherited notions of antagonistic or adversarial litigation, they underwent fundamental revision through the decades. The law was openly pronounced to take into account the social continuum. Both judges and lawyers resorted to philosophy, history, sociology and psychology, resulting in decisions that creatively interpreted the law in favour of social justice. Justice was declared to be the foremost human right and the first constitutional promise.

In India where these changes were most noticeable, they did not result in the breakdown of that legal system. Nor did the reforms render it impossible for government to function, though an exuberance in this direction has now caused the Indian Bench and the Bar to re-examine just how far should the revolution proceed. But the emphasis on social justice remains and the Indian legal system continues to be all the more vibrant for it.

Importantly, this South Asian transformation of formal legal systems to "living law", (to use a well worked but still pungent phrase), did not come about by judges alone. Instead, the reawakened judiciary in those heady days had a dedicated constituency through a vigorous social action bar including socially conscious lawyers and public interest groups together with an investigative press and an interested public. But for this constituency, the relentless 'activism' of the Indian judges might well have been self-destructive.

In contrast, Sri Lanka's legal profession is now in a perilous backslide. The public accountability of the Bar has suffered even more seriously as a result of events in connection with the erosion of the independence of the country's judiciary in recent years. Instances of not only omissions but also veritably shameful commissions indulged in by members of the Bar in this regard are too many and have been too well documented, to be recounted here. However, one is left with the primary question; what really distinguishes the past from the present as far as Sri Lanka's legal profession is concerned?

A corrosively politicised Sri Lankan Bar provides an easy answer to this question. The issue can be simply put. Every lawyer, as every other citizen in this country, undoubtedly has the right to profess private political views. Equally, there have been lawyers in the past identified with the government but that has not prevented them from taking an independent stand on matters of national concern. But an unabashed crossing of this private-professional divide over the years has resulted in detriment to the profession itself. What other profession in the country has, for example, groups of its members forming themselves into organisations that openly support one political party or another?

What we have currently is a Bar that has come to acquiesce in, if not actively promote, the formation of an insecure institutional culture that is immediately resentful of independent action. Correspondingly, its capacity to take on the role of a strong actor in protecting entrenched constitutional values has weakened to a frightening extent.

The increasingly open critiques of the legal profession in Sri Lanka by ordinary citizens and interested public action groups are all to the good if one takes into account the thorough cleansing that will have to follow at some point of time, even in the dim and distant future, when this country regains some self respect for itself and its institutions. In the meantime, the Bar Association will, of course, continually remind us of the old albeit classic adage of the hilarious predicament that the emperor with no clothes found himself in.

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