Focus on Rights

Hooting in court and legal absurdities
Writing about legal ethics in the American system, (see Zitrin and Langford in The Moral Compass of the American lawyer; Truth, Justice, Power and Greed, Ballantine Books, 1999), the authors point out the essential contradictions between legally unethical and morally unethical actions on the part of legal professionals.

To quote an assessment by them that would apply verbatim to Sri Lanka; "Many consider the typical American lawyer to be either immoral or amoral while many others believe that our justice system no longer protects the interests of the average person. Polls show that public confidence in lawyers has never been lower."

The book abounds with examples of instances where lawyers have faced competing ethical principles and most often than not, have succumbed to the lure of power and greed as opposed to truth and justice. If such a book was to be written about legal professionals in this country, I suspect that the writing would be as charged and as incisively angry, (if not more), given the almost but total breakdown of moral and compassionate standards by Sri Lankan lawyers.

This betrayal has been aggravated in recent years by seniors in the profession openly manipulating the prevalent state of insecurity in the judiciary, (vis a vis its independence from political interference), for their own benefit, power and greed. These instances need honest documentation and unsparing analysis at some saner point of time for the purpose of recording the darkness of an era which, hopefully Sri Lanka's legal and judicial system would never have to endure again.

Currently, the controversy over a team of lawyers agreeing to represent the alleged killer of Justice Sarath Ambepitiya and the ensuing fracas in the Chief Magistrate's Court where the lawyers, upon making appearance for the main suspect, were hooted and booed by their colleagues at the bar table, is yet another manifestation of this same deterioration in legal ethics and standards in this country. Such an unsavoury incident was only a natural culmination of incautious statements made by the President of the Bar Association of Sri Lanka (BASL) not so long ago, virtually calling upon lawyers not to represent the accused.

From thereon, we had a veritable comedy of errors wherein the lawyers who ultimately agreed to appear for the suspect Mohamed Niyaz Naufer, (whether for monetary largesse of an extraordinary kind or not, though it can hardly be maintained, even by the most naive among us, that their retention stemmed out of the kindness of their hearts), was able to obtain for themselves, a letter from the BASL giving them permission to appear on behalf of the suspects.

That permission could be given or that even notification need have been made of something as basic as a lawyer's right to appear for a suspect is, of course, a curiosity which could perhaps happen only in a system as internally subverted as ours.

Though comparisons have been made, this question is very different to the situation in 1987-90, during the JVP youth insurrection, in response to the killing of lawyer Wijedasa Liyanarachchi, (who was among at least twenty lawyers killed for attending to their professional duties and in general during this period). The Bar en bloc and irrespective of its political differences, decided to boycott the ceremonial sitting of the Supreme Court in the new Courts Complex. Later, as the killers of Liyanarachchi were not brought to book, it was decided that no member should appear for any police officer until the matter was settled and the killers charged in court.

Returning to the matter in hand however, the letter of implicit or explicit permission issued to the lawyers concerned by BASL was apparently not sufficient to protect the retained lawyers from being jeered at in open court when the case was taken up. The public, as evidenced in letters written to the editor since then in a number of newspapers, has been rightly taken aback by the commotion in court, many letter writers pointing out the inherent injustice in lawyers behaving in this manner and getting away unpunished when ordinary persons are not allowed to talk loudly in court or for that matter, sit cross legged when sittings commence.

One recent practical instance should suffice to illustrate the absolute contradictory manner in which the law operates to protect the dignity of court; that of an ordinary litigant, Tony Michael Fernando who was sentenced in early 2003 to one year rigorous imprisonment for contempt of court by a Supreme Court Bench comprising Chief Justice Sarath Nanda Silva and Justices Yapa and Edussiriya. The sentence was passed on him for talking loudly in court and persisting in his application.

Theoretically, contempt of court powers have been developed through the years not to punish hapless litigants who may lose themselves in an aberrant instance but rather to protect the administration of justice. A better example cannot be evidenced than where lawyers behave like ordinary ruffians in court and disturb the proceedings of court. Such repellent behaviour cannot be weakly explained away as a "natural phenomenon" upon the killing of a much respected judge, as was sought to be said to one daily newspaper this week by an office bearer of the Chief Magistrate's Court Lawyers Association. Small wonder then that public distrust of the legal profession is growing by leaps and bounds when behaviour of this nature pass by unpunished and small aberrations are visited with such severe penalties.

V. R. Krishna Iyer, a former judge of the Indian Supreme Court renowned for his adroit manipulation of legal language, once termed the cornerstone of any legal system to be "the integral yoga of justicing and lawyering." It would be apparent to all that this 'integral yoga' is malfunctioning very badly in this system of ours. At a time when the courts and lawyers might have stood strong against political arrogance from both sides of the political divide, what we have is weaknesses manifested at very turn and absurdities such as lawyers getting booed by their colleagues in court.

What we need now is a shift of focus from such absurdities to serious examination of every aspect of the legal system, the legislative and judicial processes, the working of the legal profession, the nature and functioning of law in all its aspects in relation to society and its relevance to contemporary needs. Sadly, given the unsavoury realities that predominate in the legal system now where lucre is the main aim of legal practice, such exhortations are necessarily limited to calls in the wind.

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