Focus on Rights

Better to be a scavenger rather than a lawyer?
A daily newspaper, this Saturday, recorded the robust complaint of a senior lawyer from Matara who was of the opinion, (as put before a recent meeting of the Bar Association), that it would have been far better to have become a scavenger rather than a lawyer. His reasoning was primarily grounded in the belief that, at least in the case of scavengers, they will protect a fellow worker if the former comes under threat whereas in the case of lawyers, there is no one to protect them when they are humiliated by judges.

This kind of masterful albeit colourful statement may, of course, vastly overrate the collective capacity of scavengers to bond together when a member of their tribe is in danger. However, there is no doubt that a grievance of this nature, stemming as it does from the complainant's anger at being judicially prevented from making submissions on behalf of his client, is eminently justifiable in its substance.

The Bar Association is reportedly pressing for the drafting of a code of conduct for judges. Whether such a code will have the desired effect or be confined to the paper that it is written on remains to be seen. Some civil society organisations have already pointed out particular concerns in this regard. The first concern is in reference to the relationship between judges themselves as peers and as equals, where the higher and the subordinate judiciary is concerned.

Particularly relevant will be the modes of disciplinary control, promotions, transfers, and the like of judges of the subordinate courts. Complaints of arbitrariness and unfairness by the Judicial Service Commission which is the primary authority in relation to lower court judges, with cases still apparently (and eternally?) pending in court, have characterised processes of legal administration even more than ever in recent times. Consequently, this is a vital concern that still remains to be addressed.

The second issue relates to the relationship between judges and lawyers from the official as well as the unofficial bar. This incorporates treatment of junior lawyers, out-station lawyers, and all other lawyers who may not belong to an elite; the right of audience as regards all lawyers; courtesy between the judiciary and lawyers; and preventing direct or indirect intimidation of lawyers of any category.

This concern is all the more important given numerous documented instances where lawyers have been treated with extreme discourtesy at the very highest judicial levels.

Thirdly, the relationship between the judiciary and litigants should also come under scrutiny. Courtesy by the Bench to, not only the Bar but also litigants who appear before them is of equal importance. The numerous travails of the judicial process in Sri Lanka including its ubiquitous laws delay a complicity between lawyers and judges in postponements of cases are now of common knowledge, and the perception (if not the reality) of corrupt registry processes, as disclosed in recent research studies together with widespread consumer dissatisfaction with litigation processes has resulted in public respect for the legal system plummeting to hitherto unprecedented depths in this country.

Underscoring all this however is the hugely important question of the political integrity of judges. There is no doubt that ignoring this question while focussing on codes of conduct for judges will have all the proverbial elements of the ostrich and the famed hiding of his head in the sand.
It is in this respect that Sri Lanka has lost much in recent years, the explicit detailing of which needs no elaboration here.

The very fact of two impeachment motions against the incumbent in the office of the Chief Justice being lodged and then abandoned for various reasons including the sudden dissolution of Parliament leaving numerous complaints of official misconduct hanging in the air on both occasions, is sufficient for this purpose. Inevitably, the negative impact that this has had, both in regard to the accused who ought to have been afforded a basic right to a fair hearing (instead of being tried by the media) as well as badly damaged public perception in regard to the institution of the judiciary, has been enormous.

Bringing about an apolitical mechanism of determining judicial misconduct of judges of the higher courts rather than a parliamentary process which hinges on political factors, has been predominant for quite some time. The historical responsibility of the political lines of authority on both sides of the divide in failing to put into place such a mechanism is now extremely clear.

Both the Peoples Alliance and the United National Party have shown themselves to be governed by expedient thinking where the independence of the institution of the judiciary is concerned. Such expediency by the leadership of these parties in relation to protection of party political interests has, of course, been manifested in significantly varying degrees. Minority parties following in their sway is just another aspect of this reality.
Even now, the manifestos of the two main Presidential contenders do not appear to have dealt with the outstanding issue of the independence of the institution of the judiciary. Of course, in a context, where the two contenders have singularly failed to deal with even the broader and general questions of institutional independence as sought to be protected by the 17th Amendment, this is nothing to be marvelled at.

Meanwhile, the abdication by the Bar, of its traditional responsibilities in relation to protection of the independence of the Bench particularly during these years is equally well documented. The manner in which the past leadership of the Bar not only ignored but also positively supported executive interference in the internal workings of the judiciary in this country comes to mind in this regard.

Is it surprising therefore that after allowing such processes of deterioration to continue unchecked for so long, lawyers are now in a situation where they are compelled to declare that scavenging is a more estimable pursuit than lawyering? It needs to be said that protection of the integrity and reputation of the Bar (applied collectively to lawyers as well as to the institution of the Bar) is inextricably linked to the protection of standards of the integrity and independence of the Bench from the highest to the lowest levels. Where one deteriorates, it is inevitable that the other will follow. This is the reality that we are increasingly being compelled to face in this country.

This dual interplay of rights and responsibilities on the part of the Bar as well as the Bench is also reflected in international standards, most particularly the United Nations Basic Principles on the Role of Lawyers and the 1983 Montreal Universal Declaration on the Independence of Justice. This responsibility remains even more imperative in developing countries and with regard to the "poor and marginalised" sections of society. The legal profession in Sri Lanka has, of course, singularly failed in this regard. Is it any wonder therefore that a crisis of confidence is evident to this extent in regard to both the Bench and the Bar?

It is, of course, not to be thought that the current initiative by the Bar Association in getting a code of conduct drafted for judges will address all these issues. It is to be hoped however that this initiative would stimulate a wider discussion in the public forum on the nature of judicial administration, (if not the legal system in the country), rather than be confined to a simple question of how judges treat lawyers. Focussing only on the latter would only result in the biggest joke of the era.

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