DILEMMA OF THE BAR ASSOCIATION, JUDICIARY, RULE OF LAW, LEGAL AID, LEGAL PROFESSION & THE CITIZEN
Posted on December 8th, 2015

Sarath Wijesinghe former Secretary of the Bar Association, former Administrator of the Legal Aid Commission, former Ambassador to UAE and Israel.

Bar Association Membership

Bar Association is the most powerful professional body in Sri Lanka established in 1974, amalgamating the traditional Law Society and the Bar Counsel creating Attorneys- at -Law in place of Proctors’ and Advocates, and Solicitor and Barristers-at Law in the UK. Amongst ambitious objects, maintenance of the Honor and Independence of the Judiciary, consideration of matters relating to Rule of Law and Administration of Justice, Promotion of Honorable practice of Professionals, Protection of Human Rights, and Liberties, Support of Law Reforms, Legal Education, Legal Aid are some of the main items in the agenda for the BASL. Do the Legal Professional living up to these expectations is a matter the citizen has to decide based on the performances of the legal profession and the professionals.  Membership of the Association runs to around 16000 with many in active practice. Judiciary is predominately consisting of Attorneys-at-law with the Legislature executive and important positions in the public and private consists of lawyers who will fit into any position in the system of governance anywhere in the world.

Bar and the Judiciary

Bar and the Judiciary are integrated limbs of the Judicial system as either sides of the same coin. As members of the Judiciary consist only of Attorneys- at- law, and every member   enrolled as an Attorney – at – Law of the Supreme Court should statutorily, became a member of the Bar Association of Sri Lanka. Accordingly, members of the legal profession are monopolizing the representation to of the citizen to the Judiciary for redress and fair play on matters of civil criminal and justice on matters against the society. Independence of the Bar and the Judiciary are matters the citizen is vague about and there is ongoing debates and misunderstandings on the interaction of the two branches of the Legal Administration. BASL is accused of influenced by NGO’s and some Embassies and allegations of Bribery and corruption of Judiciary is heard more often than before signifying the deteriorations of the standards. As standards of Education, Ethics, Behavior, Skills, and all other respects are gradually declining there is no wonder the standards of the Legal Profession and the Judiciary too is declining proportionately.

Conflicts among Bar, Judiciary and the Citizen

Conflicts are not uncommon among these three groups interacting each other on daily basis. It appears that the matters have aggravated in the recent past faster for unknown reason. Incidents taken place in Negambo where a group of lawyers have protested and made representation against a Magistrate to the Bar Association and the Chief Justice was given front page publicity.  The Judicial Officer was transferred forthwith. In Galle a Presidents Counsel is charged for contempt of court disturbing the Court proceedings with ring tones on the mobile phone. As the matter is Sub Judice” we are prevented from discussing it any more until the court proceedings are over. A citizen was sentenced to three months for yawning at the court premises. A young man was sent out of courts for wearing a mod shirt and another for an unusual haircut. Some judges do not appear to read cases and have not brushed the legal basics exposing ignorance and making mistakes in judgements. Judges appear to be ignorant, proud, and not living up to the expectations requiring rigorous training on law, procedure ethics and customs. Unfortunately, there is news and gossip among the community that judges are up to bribery and corruption which was never heard during our times despite the majority of honest and honorable judges in the system. Citizens have issues with the lawyers on the quality of services, exorbitant and unreasonable charges for litigation and low quality of professional services. In the United Kingdom the Law Society is strict on the Solicitors on the fees charged, quality of professional services and the solicitor is bound to give the breakdown of the fees charged and services rendered, which is not applicable in Sri Lanka. A leading Colombo based NGO lawyer in the forefront in a group of minority civil society movement engaged in fundamental cases has charged billions of rupees for inquiring into an alleged bribery corruption charges of a leading Government Institution on Aviation after the regime changes, has declined to give the break down despite agitation of the media and the profession. They should be whiter than white as those preach good governance and cleanliness on professionalism should set an example.  Some cases prolog for decades and lawyers tend to live on inefficiency and ineffectiveness of the system. Justice delayed is Justice denied and it Is time for the Bar to lead on law reforms and laws delays with the Judiciary and the civil society. Lawyers engaged in regime change with Foreign Embassies are amply compensated and a lawyer from Galle has made a fruitless attempt to whitewash the sins of some compromising steps of BASL with NGOs and Embassies. Court system is a main breeding ground for corruption and bribery along with the Motor Traffic, Immigration, Customs, and Police Departments. Minister of Justice for whom we have highest regards and hopes in the steering wheel appear to have no control a vision strategy or a plan of action to correct the situation. It is the duty of the BASL to assist him in his endeavors to put things right. He appears to fight his own battle for survival. It is time we assist the Director General of the Bribery Commission who is fighting a lone battle hard to minimize bribery and corruption.

Is Judiciary independent and living up to the expectations of the citizen

Judges are in glass houses as exhibits and citizen depends on them to seek justice and fair play for redress for the civil, criminal and issues against the society through the Police and the AGs Department. Standards have gone down everywhere and one cannot expect Judiciary alone to maintain it on isolation as judges are selected from and among the Attorneys-at –Law who citizen has doubts on the competence and conduct. The worst period of the Court System in Sri Lanka commenced from Sarath Silvas’s period with the declining of standards as a result of Judiciary being politicizing and dictatorial. Madam Shirani Bandaranayaka – a world renewed academic should not have treated so badly and former Chief Justice – one of the finest lawyers and a celebrated Judge Mohan Peiris should not have been removed from the office merely from a latter from the Presidents Secretary overriding the appointment which was legal and constitutional, which are black patches and bad precedents undermining the independence of the Judiciary. Hulftsdorf” Gossip says still Judges are manipulated via telephone calls and messages. Criminal Charges on Justice Sarath Abrew and his Fundamental right Application has created doubts and bad reputation on the country locally and internationally

Rule of Law /Law and Order and Legal Aid    (Legal aid is not a favor- It is a right of the citizen)

Rule of law is the supremacy of the law being equal to everybody which prevails in theory. Today rich and privilege can get away with money and power. Access to law and justice is denied to the poor and powerless with weak and ailing legal aid system poorly funded with inefficient and ineffectual staff. Billions are spent in the UK on legal aid through the network of Solicitors preventing a revolt and unrest of the citizen who will be able to retain even a QC for litigation approved by merits and income tests. Indian and USA is far too advanced on public interest litigation and group rights being Bopal” case being the most famous in India where hundreds of thousands were killed on chemical poisoning, and many Group rights cases in UK and USA on food and hygiene against Fast Food Giants find shelter in poor Sri Lanka thriving on poor Sri Lanka and Sri Lankans catalyzing and increasing Diabetic community which is ever increasing including children. Billions of pounds and dollars channeled to the BASL should have diverted to Legal Aid instead of using it for Regime Changes and Thamashas”. 1985/6/7 are a golden era of BASL responsible for the active participation and engagement of Public Interest Litigation and aligned with legal aid systems worldwide. It is an irony that one lawyer from Galle had defended the lavish expenditure of NGO funds at the BASL and compensation to the activists with front line appointments with perks foreign contacts security for the future. It is time for the next BASL and Law Society to take notice of the needs of the Judiciary, Bar and the Citizen for a new voyage an plan of action towards equality and Law and order of the citizen which is fast deteriorating with the wave of crimes increasing rapidly with no control.

Way Forward to Maintain Law and Order Rule of Law and a Legal System with Equality and Effective and peaceful Society

There are achievable aims with the participation of all the stallholders connected to the Legal Administration. Legal Profession is so honorable that at the outset of the profession it has been a voluntary service to the community which gradually transformed to a money making mechanism. Law is not an ASS as some say- It is close to a religion and a practical philosophy which is innovative and imaginary in driving the society to peace and peaceful living respecting and looking after each other. Thomas Hobbs, John Lock, Socrates and Plato are few are pioneers of this great philosophy transformed to the law in practice today. All Stalk holders should be able to serve and enjoy the profession which is full of directions by every religion on the dignity and honor of the profession the professionals and the society of human beings including the animal kingdom and the environment we live in. Legal system under any governance should act in favor of the citizen/living beings and it is the duty of the parties concerned  to look forward for a successful and an imaginary way of life with great care determination and commitment to serve and to be served. It should be a joint effect of the Bar Judiciary Minister of Justice and the citizen.

4 Responses to “DILEMMA OF THE BAR ASSOCIATION, JUDICIARY, RULE OF LAW, LEGAL AID, LEGAL PROFESSION & THE CITIZEN”

  1. Lorenzo Says:

    BAR ASSOCIATION……………………controlled by the UNP
    JUDICIARY ……………………controlled by the UNP
    RULE OF LAW……………………controlled by the UNP
    LEGAL AID……………………controlled by the UNP
    LEGAL PROFESSION……………………controlled by the UNP
    POLICE……………………controlled by the UNP
    CID……………………controlled by the UNP
    FCID……………………controlled by the UNP
    BRIBERY COMMISSION……………………controlled by the UNP
    PARLIAMENT……………………controlled by the UNP
    CABINET……………………controlled by the UNP
    OPPOSITION……………………controlled by the UNP
    MEDIA……………………controlled by the UNP

    SL is now like NORTH KOREA with no democracy whatsoever.
    Kim Jong Il Maru Sira and Kim Jong Un Runnil run the country all to themselves.

  2. Nanda Says:

    A timely article.
    I don’t know what is happening after my classmate left the presidency to earn more money and power. New man seems to be talking a language we cannot understand with ulterior motives, sending letters to heaven. My friend, also a big Pandama of RW was easily understood.

    4 the paragraph shows the correct history, but even appointment of that Lady to the top post cannot be proper. If appointment was not proper, kicking out will also not be proper. You forgot to mention current magistrates abusing elephants, giving judgements as they own the country.

    “Low” college shall be integrated fully to the University and only A/L top students shall be allowed in. This is the root cause. Overseas qualifications need to be assessed by the Uni and shall be forced to do at least one final here in the Uni.

  3. Dilrook Says:

    Most lawyers are not from the Law College. Students from the Law Faculty of Colombo University, the Open University (and some foreign universities) also end up as lawyers having passed the Law College final exam.

    Deterioration of professional standards is seen in other professions too.

    However, the steady collapse of standards observed by lawyers has the added impact on governance and justice.

    [Quote] Madam Shirani Bandaranayaka – a world renewed academic should not have treated so badly and former Chief Justice – one of the finest lawyers and a celebrated Judge Mohan Peiris should not have been removed from the office merely from a latter from the Presidents Secretary overriding the appointment which was legal and constitutional, which are black patches and bad precedents undermining the independence of the Judiciary.

    Agree.

  4. Nimal Says:

    Sarath,
    remember me you coming to my home in Kandy after you and F’pulle opened the corp store down the road where separatists had a shop there where I gave our concerns about the wrongs in our system. It seems nothing was done since and it’s we who gets the abuse from the electorate for promoting the regime. We being used,I say.

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