Sri Lankan Parliamentarians cannot be politicians and practicing lawyers
Posted on February 5th, 2015

Shenali D Waduge

For the good governance mantra to have any effect it must be practiced in its truest form. Sri Lanka’s Parliament has an abundance of qualified lawyers both in the Opposition and Government and a majority of them are practicing law. No politician should take up positions and professions that give rise to conflict of interest. As ‘learned’ men, standing for elections they should have a conscience to know the adverse effects and the conflict of interest arising when they function as a politician and a lawyer. Principally they should not function as both.

Questions to the Legal Fraternity

While it is the right for anyone to stand for office did the 11,000 attorneys of the Sri Lanka Bar Association not think about the likely conflict of interest in electing a politician to be its head?

The previous President was in fact a politician. Does such a President put the interests of the Public first or does he take his client’s interest for which he charges a fee as priority. In the case of the past President, he appeared as counsel for a leading corporate chairman who was accused of defrauding money of over 3000 members of the public robbing them of over Rs26billion resulting in over 20 of them committing suicide. In appearing as legal counsel for the alleged fraudster did he not compromise his duty to the State and the general public for which not only does he get a salary paid for by the taxpayer but numerous perks and privileges that money cannot buy. In addition, being a politician he was privy to information that was not available to others as well as the ability to make use of the parliamentary privileges and thus be immune from being questioned in Parliament. http://www.lankahoru.com/ScOrders.htm

According to the Parliament, Parliamentary Privileges act declares that No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of anything which he may have said in Parliament or by reason of any matter or thing which he may have brought before Parliament by petition, bill, resolution, motion or otherwise”

http://www.parliament.lk/about_us/powers_privileges.pdf

The then President of the Bar Association used that parliamentary privilege by challenging a decision taken by the Speaker and filing a case by the Bar Association of Sri Lanka against the Parliamentary Select Committee that probed the impeachment against Chief Justice Bandaranaike.  http://srilankans.com.au/sri-lankan-news/ada-derana-news/parliamentary-privileges-issue-raised-over-petition-against-psc?page=166 / http://www.colombopage.com/archive_12B/Dec05_1354688043JR.php

The past President of the Bar Association is coincidentally now the Minister of Justice in the interim government formed after Sri Lanka elected President Sirisena in January 2015.

The present Bar Association President also a practising lawyer has now been appointed head of a key state institute and the conflict of interest that may arise in this area needs to also be highlighted.

Miscarriage of justice by the Judiciary

We agree that the judiciary is plagued with a plethora of issues. None of them can be eliminated unless the legal fraternity themselves rise against these malpractices. We did not see any such objections when the results of the law college entrance came and alleged malpractice was highlighted giving an unprecedented number of a minority race to secure the top slots gaining over 100 seats to enter the law college. Was it because the Justice was under a Minister belonging to that minority? Moreover there was stoic silence from the then Bar Association President and the plausible reason for this we may conclude to be was the likely loss of votes from this minority community to him at Parliamentary elections.

Revelations by 2 former judges at the Annual General Meeting of the Judicial Service Association on 22 December 2012 only confirmed that all is not fine in the annals of the Judiciary. Sending an innocent man to prison just because the judge does not like the lawyer appearing for him is definitely a miscarriage of justice to which the organs of the legal system kept quiet.

When the animal welfare bill and anti-conversion bills remain in embryo we can but wonder whether it is because of the religious whims of Ministers holding the portfolio.

Lessons from other nations

  • In Italy Silvio Berlusconi’s attorneys were all members of its Parliament. How ethical is it for defense lawyers/Parliamentarians to make laws that protect their Premier who is also their client?
  • Philippines – Section 14, Article VI says No Senator or Member of the House of Representatives may personally appear as a counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies”. Conflict of interest can arise when those holding portfolios have access to information not privy to others.
  • The Philippine example is what Sri Lanka must now follow.

Ideally as learned men especially in a profession such as law, we expect lawyers to function with higher moral standing and not wait for the general public to bring up matters that may give rise to instances of conflict of interest. In the absence of lawyers realizing the conflict of interest we feel it is only correct to bring these important areas to public attention so that they may also voice their views as well. It stands against every norm of democracy to appear as a politician and a practicing lawyer in view of the highly politicized environment that prevails.

With the new Government mantra assuring good governance and the emphasis they are putting to the judiciary and legal profession, the ‘independence of the judiciary’ can happen only when the lawyers themselves are genuine and honest in their roles. The Sri Lanka Bar Association cannot function as a politicized body and if it continues to elect politicians as Presidents it is demeaning the ‘independence’ expected of them and for which they claim to work towards.

It is for the Bar Association to declare that Politicians would not be elected President of its Association and for Politicians to decide whether they are to function as politicians or lawyers. It is unfair of them to do both.

Thus, the best way to avoid having to wear too many hats conflicting with one’s expected duty as a Parliamentarian is to refrain from appearing for legal cases (for a fee or not).

Shenali D Waduge

5 Responses to “Sri Lankan Parliamentarians cannot be politicians and practicing lawyers”

  1. Lorenzo Says:

    A/L failed Upul Jayasuriya is now the BOI chairman!! What qualification he has to lead the BOI? Nothing. Just supporting UNP to topple the MR govt. has earned him this!!

    Shameless!

  2. Nimal Says:

    No mention of court cases going on for decades when someone writes about miscarriage of justice by the judiciary be cause some only write about the conniving crooked politicians but not about the true welfare of the suffering people.

  3. Ananda-USA Says:

    Ado Yakko “Facebook” Lorenzo says

    “A/L failed Upul Jayasuriya is now the BOI chairman!! ”

    Are you SURPRISED? You are getting what you AGITATED FOR … O SHAMELESS One! Don’t PRETEND NOW … it will NOT EARN YOU POINTS with Patriots!

    BLOODY EELAMIST HYPOCRITE!

  4. Independent Says:

    Lorenzo,

    He may have failed A/L. But he has some qualifications and experience.

    1. He was the youngest Chairman of a government (tractor) corporation
    2. He attended passed all Law exams , a prominent lawyer and was a PC
    3. He is very good friend of the Prime Minister

  5. ranjit Says:

    This Gestapo Govt is talking something and doing something. From President to the lowest is lying in this new Jarapalanaya. They think we are fools and forget everything in a matter of seconds. We cannot forget what they uttered during election time so easily.

    By the instructions and advise from their American Masters they hurried in to forming a cabinet without any approval from the parliament. Everything they did up to now was not constitutional. They appoint a Chief justice in a hurry and that also a Tamil. They appoint a Governor to the Central bank in a hurry and that too was a Tamil. They removed the Governor in the North and given to a civilian also in a hurry. They said they will stop work in the Port City and now they have given the green light to go ahead. They said they will close down all the big projects Mahinda started but now they have changed their minds suddenly. They blamed Mahinda for giving high posts in the Govt to his kith & kin and now they do the same giving to their wives,Sisters and Brothers and relatives. What kind of politicians are all these back stabbers? They are cheaters. They are cheating the voters of this land. When can we see a DS, DUDLEY, DAHANAYAKA era again? Maybe never.

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