The gentle dead
wood in legal profession
By
Mudliyar
Leaders take decisions on behalf of the majority.
If one aspires to become a leader of the legal profession, he has
to take decisions consistently in the interest of lawyers.
In the past
the legal profession had faced a challenge from the executive whose
ambition was to usurp the powers of the court from the judiciary
and give directives to court directly or indirectly or by innuendo.
When this was taking place, a majority in the profession resented
such intrusions but by remaining silent, they permitted such intrusions
to take place. They were not prepared to denounce such manoeuvres
lest they may earn the wrath of the executive.
The silent
majority believed that it was a matter for the leaders of the bar
or those who were dreaming to become leaders of the Bar so that
it could become another feather on their cap.
But in the
recent past when the bar had been confronted with many intricate
and complex problems they dared not even express their resentment.
They apparently feared that if they took a stand, it would offend
either the executive or certain members of the Bar who had expressed
their opinions on the contentious matter. The gentle dead would
not take any decision for or against. It does not matter to them
whether the independence of the judiciary is attacked continuously
and vigorously by any one. What matters is to maintain an eerie
silence and be a good old boy.
When the appointment
of the now-much-respected Shirani Bandaranayake as a judge of the
Supreme Court took place there was opposition from many a quarter.
But the Bar Association was strangely silent. At that time the Bar
Association could not come to a consensus. But there was a small
group of lawyers who took upon themselves the responsibility of
challenging the appointment. The matter had to be addressed by seniors
in the profession.
R.K.W. Gunasekera
along with President's counsel L.C. Seneviratne, D.S. Wijesinghe
and Shibly Azeez, a one-time Attorney General, appeared on behalf
of petitioners who complained to court about the propriety of the
appointment. Even the lawyers who disrupted a Bar Association meeting
by singing 'pel kavi'- whose action was denounced by this column
- had a backbone and were prepared to take cudgels against those
who opposed the appointment. But a certain section of the so-called
gentle deadwood of the profession did not want to take any side
in the ensuing court battle.
When one of
them, now a member of the Executive Committee, was asked by a daily
newspaper what he thought of the appointment of Dr. Bandaranayake,
he simply said, "I had no comment". This was the state
of affairs and the mental hibernation of some of the seniors who
did not want to take a decision on a matter that affected the legal
profession.
Situations
could arise where lawyers, in the interest of the profession and
the people, have to take some coherent direct action against the
executive whenever he or she tries to challenge the independence
of the Judiciary and make inroads that would have direct bearing
on the profession.
It is necessary
that the Bar should have views on many matters that would affect
the people at large. For the past four years, there have been various
amendments to the constitution of the country. Even a new constitution
is being discussed. But has the Bar Association made any observations
or put forward opinions on any of these matters? For instance even
on the ceasefire agreement, the Bar Association has not made known
its position thought past Presidents such as H.L. de Silva, S.L.
Gunasekera and a few others have expressed views on it. What contribution
has the Bar Association made to bring about peace in this country?
It may be argued
that the Bar Association being divided politically, it may be impossible
for it to arrive at decisions . But surely cannot the Bar Association
appoint a committee and publish its report so that the government,
the opposition and the public would be enlightened by its in-depth
findings.
In Pakistan
though there is a military dictatorship and the democratic freedoms
and rights of the people have been suppressed, lawyers have decided
that enough is enough. They decided to protest against the infringements
of the liberties enshrined in the constitution by the military regime.
Unlike in Sri
Lanka, in Pakistan there are many lawyers' associations like the
Supreme Court Bar Association, Lahore High Court Bar Association
and many other associations of diverse segments of the Bar. All
of them came under one banner called the ''Lawyers Representatives
Conference'' consisting of all elected leaders of the Bar. They
decided to practically boycott Courts across the country to protest
against the government's proposed amendments to the constitution.
Under the proposed
amendment to the Constitution, President Pervez Musharraf will have
absolute powers to sack the Prime Minister, fire the Cabinet, dissolve
the elected parliament and make key appointments. Gen. Musharraf
intends to enforce such amendments through a presidential decree.
The strike
and protest of lawyers made such an impact that courts proceedings
remained suspended in all courts including the province of Balukistan
and even special courts for suppression of terrorism in Quetta.
The Judges were present in the courts but seemed to be actually
supporting the protest of lawyers.
The consensus
of Pakistani lawyers was that President Musharraf's military regime
has entrenched its power on all sectors at will against the people's
freedoms enshrined in the constitution. Due to the stand taken by
Gen. Musharraf vis-à-vis the war against terrorism, the western
world is turning a blind eye to the incursions made by the military
regime. But the Pakistani lawyers have taken the bold step - not
for the first time in the history of the profession - to protest
against the proposed amendments. The Bar did not try to shape with
the political masters. The amendments to the constitution are in
no way going to affect their practice, but the lawyers felt the
rights of the people and the independence of the judiciary are more
important in civil society. They thought that it was their duty
to do whatever they could to protect the interests of the people.
This is what the people expect from the leaders of the Bar.
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