Erasing the memory of law, an independent judiciary and the legal profession
The announcement by the de facto chief justice, Mohan Pieris, to introduce regulations in order to limit the maximum age to practice as a lawyer to 70 and to impose further regulations for the renewal of the licenses of lawyers every two years, comes as no surprise. The government’s aim is to bring the military into all areas of life and to spread an authoritarian rule through the entire fabric of society. This implies the uprooting of the legal system as one based on rule of law and the independence of the judiciary to one which is regulated by the executive. The task assigned to the de facto CJ is to reshape all aspects of legal and judicial practices to suit this radical transformation towards a completely controlled system in which the executive can do whatever it wishes, irrespective of what the consequences are to the legal rights of the individual citizens of Sri Lanka.
This new remolding requires the erasing of every possible agency that would resist it. Naturally, it is the lawyers that the people would resort to when they are faced with assaults on their legal rights. The role of the lawyers under these circumstances is to educate the litigants on their rights and also to assist them in every possible way to fight for their rights within the framework of the law.
What Mohan Pieris is saying is this: the game of playing by the legal rules is now over. Of course, this is not one of the bright ideas he has got through some inspiration or during his sleep. He is merely indicating his master’s scheme and trying to make it appear as if it were his own.
Why this sudden interest in the retirement age of lawyers that exists nowhere else in any democratic jurisdiction? Pieris’ answer is that these lawyers above the age of 70 are unable to advise their clients properly and they are losing cases. However, if one were to make a list of cases decided in his short tenure in the Supreme Court it would not be difficult to list many cases which have been thrown out, not on the basis of legal principles and often not even with a written judgement stating the reasons for the decision, but only because the demands of some parties were against the wishes of the executive. The advice of Pieris to lawyers has been that they have duties to the nation. That jargon does not belong to law as expressed within democratic jurisdictions but that is quite familiar terminology of countries where dictatorships prevail. For example, within the Soviet Union it was the duty of everyone, including lawyers, to defend the socialist form of government and socialist property. If the lawyers were to attempt to safeguard the rights of the individual, that would go against the very ideological foundation of that legal system.
Pieris has also been quoted as saying that the lawyers should take cases against the government agencies for discussion with those agencies and should not encourage litigants to bring the cases before the courts. This is the new order of things.
Naturally, those who would resist this ‘new legal order’ would be lawyers that have their roots in the common law tradition. Such lawyers do not take their instructions on the basis of arbitrary guidelines by anyone, including any chief justice. They do not see the chief justice as anyone more than one among the rest of the members of the Supreme Court, having no more power than those judges. Having knowledge of a tradition and also the knowledge of how the law has been practiced in better jurisdictions they would be guided only by the law and nothing else.
Lawyering is a profession and not a job. It is not a job practiced under an employer. Neither the chief justice nor the government is the employers of the lawyers. There may be lawyers who work for the government or for companies. The government and the companies can make regulations over those who are employed by them. However, that is limited to such employment. The regulations of a profession must be those which are designed and accepted by the professionals themselves who exercise their will through their associations. The professionals should take action relating to those who cannot any longer carry out their obligations through their own disciplinary processes. The clients can resort to such professional bodies if they have grounds to complain about the services that have been rendered to them.
There is no basis at all for the chief justice to interfere into this area which belongs to the legal profession itself.
If the legal profession succumbs to the interference brought about on behalf of the executive the people of Sri Lanka will lose the assistance of an independent legal profession to fight for their rights. What is at stake is not merely the rights of the legal profession but the rights of the individual citizens of Sri Lanka.
The essence of an authoritarian legal system is to displace the central importance of the individual and his or her rights. If this core value is lost then the legal system as a whole is lost. The private property and individual rights will become a plaything of the executive.
It will not be long before military men themselves will be assigned to the places occupied by judges and lawyers. The people in Myanmar (Burma) are now struggling to rid themselves of the regulations and the personalities imposed on them during the dictatorial regimes and to rebuild an independent legal system. They have had the taste of chief justices and other judges controlled by the executive and also of military men who occupied the place of the judges.
As Sri Lanka is now entering that path it would be a good exercise for the leadership of the Bar Association of Sri Lanka to visit Myanmar and take a close look at the taste of things to come. It would be a pity if they were unable to open their eyes now or are indeed, afraid to do so.
Erasing of the law, the independent judicial system and the independence of the lawyers is now very much on the agenda in Sri Lanka. it all depends now on the capacity of the legal profession to resist and to defend its inherent rights as an independent profession. And what this means to the people as a whole is about their rights as individuals. Whether they want to be merely a cog in the machine is something they must themselves decide NOW.
*A Statement by the Asian Human Rights Commission
Safa / November 18, 2013
Why doesnt he pass the same rule for the president, prime minister, ministers and members of parliment.
Don Stanley / November 18, 2013
This corrupt bugger, Mohan Peris wants to get rid of senior lawyers who have integrity – people like , Romesh De Silva, Kang-Iswaran, etc. who can take him apart in Court..
What a creep! Chief Justice – my food!
Levi / November 18, 2013
Very Sound advise From the Cheap Justice.
It follows that No body can practice after the Statutory Limit of &0.
But Unfortunately This Cheap Justice does not have the Guts to say what should be said in this Connection.
If a man/Woman becomes senile at 70, how come he is fit to rule the Country. So he should say No Politics for any one over 70.
MR will have only a couple of years left to retire. When he retires, he could be charged by new young mob who takes the Baton.
This Should be extended to The Priests too. They too should be pensioned off at 70.
Will that be acceptable? No. He will be shot with gun filled with Shit.
No Politician is going to accept this. De facto CJ should utter something sensible otherwise the people will one of these days will take over Hulfdorf Hill even without a packet of Buriyani,a per of arrack and Rupees 500/- they got whilst they were trained to do last year during the impeachment of the former malleable/pliable CJ
Fedrick / November 18, 2013
A very good initiative.
essie / November 18, 2013
Perhaps he will now pass a law that everyone should be dead (killed?) by the age of 70. It will certainly help to control the population explosion!
How old is this guy, by the way?
Park / November 18, 2013
The Cheap Justice has no authority to talk on this point as his appointment itself is illegal. He is sitting in the seat of the Chief Justice although his own courts have decreed that the appointment is illegal. What a shame. Shameless man.
Fernando / November 19, 2013
I dont think that there is nothing to be concered about this. The rumor is that their will be a another law stating the above will only apply to lawyers who are not “WITH” the goverment, So .. everyone can be pro goverment and problem solved !!!! (Rajapaksa Way … Jaya wewa).
Citizen / November 19, 2013
Will it not be better if pensions to the Parliamentarians are scrapped off? Moreover, what about the idea of restricting the allowances to the existing Parliamentarians, import of luxury vehicles, etc. Why can’t the amount of monies that was not paid as customs duties, the penalties for non-payment of such duties, commissions earned through tenders, monies invested in casinos, etc, be considered. More than that – Police and Military getting free food from restaurants, chicken outlets, etc. The list can be stretched. Now they are attempting to restrict the knowledge and wisdom. Ha, ha, ha.
Rajash / November 19, 2013
heading towards Kangaroo Court….
Safa / November 19, 2013
Doesn’t the Bar Association have any say in this. They represent the interests of the lawyers not the Cheap Justice.
JULAMPITIYE AMARAYA / November 19, 2013
I do not have any knowledge about the Law,
But The Presidente JRAPASSA and His SON also are LOWYERS. [Lawyaars].
So why The Bar association of sri lanka Does not take advises and instructions from those two morons.
The Penetrator / November 20, 2013
Laws are made to be broken up. 70 years is too old grand pops, at that age you realise that life just passes you by in a blink of an eye lid. I say lawyers and chief ‘justice’ dudes should be made to retire around 35 years of age. This might be the average age of you really knowing a fuck bout the world.
Lawyers are not really needed if the ‘LAW’ is written properly. You also don’t need a police force to enforce the lw, the law is so simple that the community can look after its own self.
This is just my personal opinion, but I still haven’t met one single honest lawyer, there are definitely honest guys whose profession is law but these guys follow some bullshit law that was made for kiddies..
Dharmadsa Budhusena / November 20, 2013
Why only limit it to lawyer. ???
I think Doctors , Accountants, Politicians, Businessman, Contractors, etc , etc , all should be asked to retire from their professions/work at the age of 65, not 70.
the point being after 65-70 years your thinking capacity diminishes therefore we have to let young blood take over all the professions and fields.
Even to contest and hold the office of the President or Prime minister there should be an age limit of 65 years. As at now the minimum age limit is 30 years, we have to now put a maximum age limit of 65 years.
This is my personal view.
Angry man AAL / November 20, 2013
Mr C J …..
The legal profession not like a Pettah business or political business…..
This is not car licence to renew every year or 2years…..
We studied and got this profession but not only you ,,, no one have rights to make limitation or barrier to our profession…
Don’t try to make attempt any more forget about your foolist thinking
Colombo young lawyer
Leonarard / November 20, 2013
What a shame. Not a single person who has guts to stand against foolish ideas of Rajapaksas. Soon entire nation will suffer due to Rajapaksa ego. Last week there was a paper article about Sri Lanka and Rajapase regime in New Zealand Herald. It described SL as a banana republic. I do not belong to any political party. But I feel that unless PA is chased out of power this country has no hope and soon become a banana republic.
justice / November 24, 2013
This de facto CJ decides murder cases on the basis of his “personal knowledge”!
If a prisoner in custody is beaten to death,his “personal knowledge” tells him that the prisoner was a terrorist – and,a ‘terrorist’ has no rights – also that the prisoner died of natural causes because the police told him so – no need for a postmortem examination.
All postmortem reports are ‘state secrets’.
None are divulged to counsel – state or defence.
This is the new “system” of justice.
Strangely,lawyers do not protest about these new norms of (in)justice!!!!