Constitutional Reforms in Sri Lanka must prohibit Members of Parliament from practicing law
Posted on April 15th, 2015

Shenali D Waduge

The case for good governance and the current hurry to pass constitutional reforms cannot omit a very important clause which is the need to prohibit lawyer-politicians from practicing law and influencing decisions as well as making use of parliamentary privileges when they get cornered. Given the conflict of interest it is imperative that all those claiming to bring good governance include a clause that prohibits MPs from practising law and should be included into the code of ethics for all MPs. In turn the Bar Association too must prohibit lawyers from practicing law after being elected as a MP/Deputy MP (politician) and allow them to do so after retiring from politics.

How ethical is it for lawyers who contest and become elected as representatives of the people and who are looked after by the State and the tax payer to take legal cases for which a fee is charged?

Public sector employees are not allowed to indulge in private employment while being paid by the state, if so why should MPs/Deputy MPs while taking salaries from the State charge a fee for private practice? Should this logic not apply to Parliamentarians as well? Are they not elected by the people to act in the interest of the public but when they take up individual cases for a fee or even on a pro bono basis does this not conflict with his job description under duties to the public?

Unlike state employees MPs not only draw state salaries, they enjoy full state privileges and moreover they are directly linked to the legislature and the judiciary and when they take private cases some of which may be directly linked to legislature or judiciary is this not a direct conflict of interest. Why should we be reliant on the provision to recuse themselves from cases where there is conflict of interest when there is also the likelihood that they will not. Did we not expect Navi Pillai to recuse herself from being judge of the Sri Lankan issue on grounds of her Tamil heritage but she did not despite appeals made.

Is it not possible for a Government or Opposition MP to use his political influence while engaging in legal practice and does he not have better opportunity to access classified information not made available to ordinary lawyers and when cornered do they not always escape by making use of their parliamentary privileges? Is this ethical governance being preached?

Why did good governance activists not object when previously the present Justice Minister while an Opposition MP was elected as President of the Bar Association and was able to influence lawyers while he also represented the biggest swindler allegedly responsible for the deaths of over 50 depositors? Why was this conflict of interest not opposed?

An apex body as the Bar Association of Sri Lanka functioning more or less like a Union for lawyers never objected to its President being an Opposition MP. They being lawyers should have been the first to object citing conflict of interest. In fact he was elected as President which questions the levels of integrity of the lawyers that voted for a politician to be the Bar Association President.

It is morally and ethically incorrect for a politician President of the Bar Association to take money from both his ‘client’ and a salary from the Public purse for representing the People. It is an embarrassment to the Latimer House Principles of good governance and accountability for appearing for a ‘client’ who has swindled the public and to add to injury he is now the Justice Minister!

This calls to mind the example of Italy where former Italian PM Silvio Berlusconi’s attorneys were members of Parliament and making laws to protect the PM.

The example of the Law College entrance examples shows that the present Justice Minister wearing the cap of politician despite being the then Bar Association President chose not to issue a statement against the malpractice that led to an unprecedented number of a minority community securing top slots and gain over 100 seats to enter the law college. The people were led to believe that because of the political repercussions of objecting to the malpractice the Bar Association President chose to keep mum.

Similarly, the present Justice Minister and former Bar Association President as then Opposition Member also chose to keep silent when David Cameron humiliated the nation and it’s President in Sri Lanka flouting diplomacy and State decorum. Here again political points took preference over defending the nation and its elected leader. Whatever personal dislikes people have for a President, when a foreigner ridicules and humiliates the nation the people and officials are expected to rally and defend both.

We cannot place trust on a wafer thin possibility that MPs will uphold conduct and put their public interests above their self-interests. This is why it is essential for the law to explicitly ban MPs from practicing law.

When people who cannot contest an election are brought in as legislatures from the backdoor on the national list can the public expect them to have any decency of ethics to stop practicing law and earning private fees?

We should follow good governance examples

  • Section 14, Article VI of Philippine constitution states that 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.
  • Law licences of Barak and Michelle Obama became automatically after he became President.
  • In Australia Members of both Houses must report their pecuniary interests within 28 days of taking office including spouses/dependent children, shareholdings in public and private companies, partnerships, family and business trusts, real estate, savings, sources of substantial income, savings, gifts, sponsored travel.
  • In Japan, its Representatives in both Houses have to keep private affairs separate from public affairs and Japan has a long list of prohibited benefits.
  • In Sri Lanka despite the official requirement to submit asset declarations how man parliamentarians actually do so – most of them file limited assets without divulging their other interests especially those they have conveniently transferred to family members – spouse, children etc?

Lets not forget that Transparency International whose head the present Government has selected to probe all opposition malpractices declared in 2001 that Sri Lanka’s judiciary and police were one of the most corrupt in South Asia with 100% respondents claiming they had to pay bribes to the judiciary.

Good governance and democratic values as well as rule of law becomes a joke when all the regulations/rules/ethics etc are applicable only to the general public and both Government and Opposition politicians flout these with immunity?

No amount of laws, legislations, bills can change a system of culture unless all practitioners and enforcers as well as the public indulge in corruption at whatever levels.

Definitely politicians should have a background of law, its help them in drafting legislations. However, it is essential that once a lawyer enters politics and becomes elected as a MP he is bound by principles of serving the public of the nation and thus he should not practice law (for a fee or even for free). Legal skills must be used to protect the interests of the nation not for personal gain or glory and certainly not for political mileage.

Shenali D Waduge

 

8 Responses to “Constitutional Reforms in Sri Lanka must prohibit Members of Parliament from practicing law”

  1. nilwala Says:

    Practice of Law as a profession comes into conflict with service to the community/nation when persons continue legal practice after being inducted into Parliament as members who are expected to serve the people for a salary. It is a plain and simple CONFLICT OF INTEREST.
    In the case of MPs the issue gets complicated because they can lose the govt service job if they get voted out by the citizenry, and unless the fallback of an ongoing private practice was nurtured it could lead to financial difficulties.

    Medical doctors employed by the Government are expected to provide the best service they can give for a salary, but when afforded the freedom to carry out private practice outside normal working hours can be tempted to give more attention to the latter.

    Similarly, teachers hired by schools to provide their best teaching skills during school hours, when permitted to give private tuition has led to a drop in performance during work hours as remuneration from private tuition can tempt them into giving more attention to the latter.

    ALL OF THESE ARE EXAMPLES OF “CONFLICT OF INTEREST” AND THE GREATER MONETARY REWARD FROM PRIVATE PRACTICE OFTEN LEADS TO DEROGATION OF DUTY TO THE PRIMARY EMPLOYER, ESPECIALLY WHEN THE LATTER IS THE GOVERNMENT WITH SECURITY OF EMPLOYMENT, WITHOUT THE HIRE/FIRE RISK OF THE PRIVATE SECTOR.
    IT THEN BECOMES NECESSARY TO IMPOSE MORALITY THROUGH REGULATORY MEANS.

    Perhaps a legal limit on income generated from private practice could curtail these tendencies. If a professional can earn more by doing private practice he/she will have to make a choice rather than have the best or both worlds at the neglect of the government job.

  2. Independent Says:

    There should be freedom to practice profession but not neglecting the government duties.
    Malpractices should be punished severely.

  3. Lorenzo Says:

    Independent,

    What you say is CONTRADICTORY.

    Who will PUNISH? Gestapo?
    Lawyers, judges and BASL should first DECIDE it is a “malpractice”. Then only you can punish.

    Will they do so? NO. Because they have one leg in politics and another in the law.

    That is why the two MUST BE BANNED.

    I have NO faith in any BLACK SUIT wearing people in SL (lawyers and funeral directors).

  4. Independent Says:

    Lorenzo,
    Here we are talking about “Members of Parliament from practicing law”, not about my ex-friend & co.

    Colvin R De Silva was an outstanding lawyer. He served as a MP too.

    Present MP culture has been evolved fast down the drain thanks to Palaath Sabhaa. Not because of Low college.

  5. Christie Says:

    Namaste: In a representational democracy people from a diverse background. Unfortunately we have a very high representation of lawyers out of 16,000 of them. Law is the most resourceful field due to land transfer business. They hardly pay any taxes. People are afraid of the lawyers. Hitler said when I see a lawyer my hand goes to the holster. This tradition of respecting (fear) layers comes down from British-Indian Imperialism when law of the country was in the hands of Indian colonial parasites. Jai Hind

  6. Nimal Says:

    Good to read an useful article by senali.haven’t got the time to read all.
    I must add that people who bring misery to our humble people are politicians, religious industry, lawyers, greedy doctors and heatless civil service.
    People get into these professions just to make money, regardless of the suffering they bring to the people.
    Go to any court house where a land dispute is dealt the crooked lawyers just endlessly prolong the case, going to decades. This situation had led to land grab and illegal occupation of land of innocent people. I know a case of a late dear friend who lived in poverty while their income giving commercial property is unjustly occupied a mudalali who had not paid rent for nearly 60 years and the court case goes on still in our ammage darmadeepaya.His two sons live alone in a 2 room annexe at the back, awaiting for the court to give their house back. But the crooked mudalali is building palatial l homes for their children from the income he derived fro my friends property. But to the world he comes out, like our politicians a pious man.
    My late sister too lost her house to a scoundrel and my other sister too will never live to get her house back from another notorious criminal who had rented the house.
    I hope the likes of JVP will put the country back from the injustices practised.
    I go from UK for a hearing at another land dispute case hoping it will come to an end,but I hear the senior Lawyer telling the assistant lawyer just to go to the court and get another date.I was furious and intervened by force and told the judge that these lawyers are deliberately postponing the cases. This judge felt sorry for me because I intervened openly in a another case,just before my hearing where a very poor woman’s case against another rich man was going in to jeopardy because she didn’t have the money to proceed, where I pulled out a few thousands out of my pocket gave her the money to fight the case and this judge felt so bad did the unprecedented step to close the court session for the afternoon and resume my case on my land the very afternoon. Though a decision was in my favour in settlement I got a bit of useless land elsewhere after 3 years of judgment.
    The useless judge who heard my case previously is a high court judge now but never heard of the whereabouts of the good honest judge.This our horrible darmadeepaya.Writers to the webs must go there to see the injustices created in over system.

  7. Lorenzo Says:

    Independent,

    “Here we are talking about “Members of Parliament from practicing law””

    That is the point.

    Who make laws? Members of parliament.

    Can they themselves PRACTICE law? No. That is “naduth amuthuruwange, baduth amuthuruwange” situation.

  8. Naram Says:

    Thank you Shenali for bringing out an essential point for good governance.

    Cases such as ‘Ponzi Banking’ where folks were cajoled to deposit money in Banks at unbelievable promises / interest rates show that that fraudsters were able to buy the best lawyers, offer inducements to judges who were the vey ones making the laws and castigating the public about the need for good governance. Drug runners too have shown massive powers of coercion at the highest levels in the government and among politicians.

    If the Bribery Commission or Tax office is controlled by the very folks who are appointing the Bankers borrowing money at fancy rates for Yaha Pala rest of us sink lower and t lower in the cesspit pigs get fatter and fatter with the rubbish.

Leave a Reply

You must be logged in to post a comment.

 

 


Copyright © 2018 LankaWeb.com. All Rights Reserved. Powered by Wordpress