By Nagananda Kodituwakku –

Nagananda Kodituwakku

Bar Association of Sri Lanka in its website displays the following quotation taken from the United Nations Basic Principles on the Role of Lawyers: 

“Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference”

However, following the same path of those who are holding office in the Legislature and Executive who pledge people to perform public office faithfully with due respect to the Constitution and the rule of law but practice completely the opposite, the Bar Association too simply follows the suit. It pledges to honour the independence of the judiciary, the Rule of Law and Administration of justice sans interference, whilst promoting the honorable practice of law in reality it simply acts as a self-centered mafia style organization.   

In this country it is an undeniable fact that the Judiciary is under tremendous pressure from the Executive and the Legislature.  And politicians in the caliber of Prime Minister Ranil Wickramasinghe openly ridicule and undermine the authority of the judiciary and claims that the Parliament is supreme over the judiciary, and it has no authority to exercise the judicial power, except through the parliament. His disparaging statement goes as follows. 

“… Supreme Court does not even have to exercise the judicial power of the people and it does not have power to violate the basic tenets of the Constitution, which the Supreme Court has been unfortunately doing in the last decade… and it is acting as a dictator… ” (Parliamentary Hansard of 07^th July 2016).

When a person holding a high profile public office makes such an intimidatory statement against the judiciary that exercises people’s judicial power citizenry expect the Bar Association, the professional body of lawyers to defend the judiciary, which however never occurs in this island nation.

Yet, there is a national need to uphold the independence of the judiciary and the rule of law without which no democracy can survive and this is what exactly has happened in the Republic Sri Lanka. It is a proven fact that no one in authority takes judiciary seriously due to unforgivablelapses on the part of the judiciary permitting the other two organs to ridicule it. Not just once but many times over, the Executive President and the Prime Minister of the present regime have undermined the authority of the judiciary pointing the finger at the Chief Justice who had pleaded for favours from the Executive promising to deliver judgments favoring the government and appointing judges according to the wishes of the Executive.

The statement made by the Prime Minister in the Parliament on 30^th Jan 2017 about the despicable conduct of the Chief Justice Mohan Peiris who had sought favours to remain in office with promises to make judgments to please the Executive and also to appoint the judges as per the directions of the Executive, the details of which were fully reported in the Parliamentary Hansard dated 30^th Jan 2015 is one of the best examples. Subsequently the Executive President himself reaffirmed this statement referring to the favours sought by the Chief Justice Mohan Peiris. The media gave maximum publicity to this improper, insulting, intolerable and unbecoming behavior of the Chief Justice that patently violated the public trust doctrine. Yet, due to the dismal failure of the rule of law in this country, so far no disciplinary proceedings have been instituted against the lawyer Mohan Peiris. And despite a credible complaint with all relevant information presented to the CIABOC, it too has miserably failed to uphold the rule of law and to initiate action to prosecute Mohan Peiris and other judges of the Apex Court who have been charged for judicial corruption. This dismal failure on the part of the CIABOC has on 26^th Sep 2017 afforded the Supreme Court an opportunity to take up the position that those charges against the judges are not well-founded. 

Therefore, the need has arisen to stop interference of the judiciary and intimidation of judges, a fundamental necessity to restore the rule of law in the country.  On 10^th July 2017 I took an initiative in this regard and called for a Special General Meeting of the Bar Association to discuss these issues, which are of critical national importance. The said request was made after fully complying with the necessary formalities of the constitution of the Bar Association. Unfortunately, the Executive Committee of the Bar Association, which has been installed in office with only 3000 votes out of a total eligible voter count of 13750, simply turned a blind eye on the request.

No doubt the people would agree that the absence of the rule of law in a country directly affects the innocent litigants. That effectively allows the dishonest lawyers to abuse their clients, which has become a regular occurrence in this country. It was not long ago that two lawyers forcibly took away some jewelry from their client who had a difficulty in paying the fees.  Yet, they were able to go scot-free simply because there is no proper regulatory mechanism in this country to discipline the errant lawyers unlike in Britain. The UK has a strong regulatory authority to protect the citizens from unscrupulous lawyers, with powers to remove undesirable elements from practice of law whereas such actions are unheard of in Sri Lanka. 

The general public critically views these incidents and begins to lose their trust and confidence in the entire lawyer community and the judiciary, compelling the people to go elsewhere seeking justice, for example, the UN Human Rights Council. The appalling conditions prevailing at present generate the negative impact on the entire lawyer community that includes genuine practitioners of law as well. People use the same yardstick to measure the good lawyers too for no fault of them. 

As a lawyer practicing in two jurisdictions (England and Sri Lanka) recently I made inquiries (03^rd Aug 2017) from the professional body of lawyers in the UK – the Law Society – and also from the Bar Association of Sri Lanka about the disciplinary actions taken by them respectively against the lawyers for professional misconduct for the year 2016. The response given by the Law Society in the UK (23^rd Aug 2017) and the Bar Association of Sri Lanka is as follows.

England and Wales                                                        Sri Lanka

a). Number of lawyers removed from the Role  – 76             Nil

b). Number suspended – 21                                                        Nil

c). And the number imposed fines – 55                                    Nil

The Bar Association of Sri Lanka drew a blank as above, and even refrained from sending an acknowledgment to the query. Apparently, it had nothing to report at all. However, after my continuous insistence to have their stand known in writing, the Bar Association informed me on 11^th Sep 2017, that it would not release such information without a directive from the Supreme Court, which understandably has nothing to do with the release of such information pertaining to the Bar Association.    

The bottom line is that there is a dire need for the establishment of an independent body to regulate the legal profession with wide powers to install strict discipline in the profession fulfilling the expectations of the general public. 

*Nagananda Kodituwakku, Attorney-at-Law (Sri Lanka) & Solicitor (England)