Focus on Rights

Pursuing reform of the bench and the bar
A lot more was at stake at the recently concluded elections of the Bar Association of Sri Lanka than the prestige of the contenders. This was perhaps why the campaign on the part of the former incumbent surpassed all boundaries of basic human decency ordinarily observed at elections for the presidency, attacking as it did on a deeply despicable personal level.

We saw other manifestations of unethical lobbying in favour of the then incumbent including unashamed campaigning in selected outstation bars by an "outsider to the profession." This desperation in turn, (though achieving the required results in certain respects), was, in general, counterproductive, resulting in a victory that many have greeted with relief as the long awaited signalling from within the Bar itself that the presently unhealthy status quo has to change.

During the past five years, spurts of discontent had been evidenced from time to time in relation to the legal and judicial arena, including most particularly in late 2003 when over a thousand lawyers, activists, law academics and other professionals signed a petition bringing into focus, the premature retirement of one of Sri Lanka's most respected and independent judges Justice Mark Fernando. Justice Fernando's premature retirement, as evidenced, (fortunately, in retrospect), on record at that time, was due to his strong disillusionment and his perception that he had no further role to play in the context of matters pertinent to the Sri Lankan Supreme Court at that time.

Months later, an equally esteemed judge, Justice C. V. Vigneswaran raised some of these very same issues in a Sunday newspaper, being as he was, one of the few judges with the fortitude and the courage to pinpoint what had gone wrong in the judiciary with its inevitable impact on the legal profession. It was unfortunate that one of his former judicial colleagues interviewed a week later in that same newspaper did not bring himself to express his discontent in quite that same way.

Regardless, these were notable signs of dissent, coming as they did from judges of impeccable character and buttressed as they had been by similarly forthright comments made periodically by another judicial retiree, Justice KMMB Kulatunge. Yet, the nature of subversion being as it was, these warnings did not lead to any definitive movement for change, whatever action evidenced being tinged by corrosive elements of politicisation that eventually deprived it of any force or effect.

At that time, the failure on the part of the Bar to respond to these issues was profound. Its dereliction in this respect, prompted by the personal and professional interests and/or the timidity of its former presidents during the past five years has been too well documented to need repetition here. It is hoped therefore that this week's election victory may transform this pattern of inactivity to a determinedly apolitical push for reform of the Bench and the Bar, despite the obvious dangers posed by a mere change in the presidency without a corresponding impetus in the Bar Council.

Restoring the legal profession to some of the former esteem, in which the public held it, has a specific practical context meanwhile. As noted by the American Bar Association in its Report of the Joint Conference on Professional Responsibility in 1958;

"the lawyer tempted by repose should recall the heavy costs paid by his profession when needed legal reform has to be accomplished through the initiative of public spirited laymen. Where change must be thrust from without upon an unwilling Bar, the public's least flattering picture of the lawyer seems confirmed. The lawyer concerned for the standing of his profession will, therefore, interest himself actively in the improvement of the law. In so doing, he will not only help to maintain confidence in the Bar but will have the satisfaction of meeting a responsibility inherent in the nature of his calling."

It is apposite also to remember former Chief Justice G.P.S. de Silva's caution at the 1993 BASL Convocation where he said, (quoting H.L. de Silva P.C.), that; "of all the qualities which are expected of us, the supremely important values are those of moral integrity and fairness, a conscientious attention to a client's cause, a never ending quest for perfection in the exercise of our professional skills and an indomitable courage in the face of improper pressures that conflict with our duty….let us remember that the Law has no life independent of the lawyers who function within it.

And if we lawyers through our own weaknesses and lack of serious concern permit a decline in professional standards, it will assuredly cast a blight upon the whole system of the administration of justice that will lead to its eventual rejection by the people for whose benefit it has been established. That would indeed be a tragedy for everyone for we would then have lost a great deal that is of immense value."

In sum, the duty on the part of lawyers to ensure that justice is done in a wider sense over and above his or her professional responsibilities, is traceable to very definite legal imperatives and has clear reference to modern international instruments relating to the legal profession. Public accountability necessarily flows from this duty.

The Bench and the Bar are the two accredited constitutional mechanisms for the delivery of justice. The lapsing of one inevitably negates the vitality of the other. Up to now, Sri Lanka exemplified this very stark truth. This week though, there is some faint reason to think differently.

Back to Columns