21 November, 2019

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Lawyers Fail To Fulfil Their Duties On Judges’ Negligence – AHRC Writes To Bar

The Asian Human Rights Commission has today written to the President of the Bar Association on professional negligence of some magistrates and the members of the Bar.

 Bijo Francis

Bijo Francis

The AHRC said; “serious neglect on the part of the magistrates also reflects that members of the Bar have failed to fulfil their duties as required by their profession, i.e. to ensure objections are raised against such acts of neglect in order to prevent miscarriage of justice and to legitimize their role as lawyers representing clients.”

“We reiterate that the proper practice of the legal profession requires the correction of such neglect and failures in the magistrates’ execution of duties.” The Executive Director of the AHRC, Bijo Francis said in the letter.

We publish below the letter in full;

 

 

Upul Jayasuriya

President

Sri Lanka Bar Association (BASL)

No. 153

Mihindu Mawatha

Colombo 12

Sri Lanka

Fax (+94) 11 244 80 90

Dear Mr. Upul Jayasuriya,

The Asian Human Rights Commission (AHRC) has closely monitored the situation of the rule of law in Sri Lanka, with particular emphasis on the way the criminal justice system functions. The AHRC wishes to draw your attention to some glaring acts of negligence on the part of certain magistrates that have resulted in serious consequences, including death, for persons who appeared before them.

We are writing to you, the President of the Bar Association, because such serious neglect on the part of the magistrates also reflects that members of the Bar have failed to fulfil their duties as required by their profession, i.e. to ensure objections are raised against such acts of neglect in order to prevent miscarriage of justice and to legitimize their role as lawyers representing clients.

The Bar Association also has a duty to ensure that it will intervene when reports of such negligence come to light. In any case, protecting the interests of lawyers, and ensuring proper professional conduct on their behalf, is an obligation of the Bar Association as a professional organisation.

We wish to bring to your notice the following recent acts of negligence:

a.         Death in custody of 17-year-old P.H. Sadun Malinga:

The details of this case have been publicized and it is likely that you are already aware of it. In summary, this boy, together with a few other family members, was arrested without reason by a group of policemen from Kandaketiya police station. They were severely beaten. Later, they were produced before the Passara magistrate’s court. Two lawyers appearing for the boy and the boy himself complained of severe assault by the police. The magistrate was told that the boy was suffering from severe chest pains. The magistrate did not take any notice of these submissions and ordered that the boy and the other suspects should be remanded. The boy later died in remand prison. The judicial medical officer who conducted the post-mortem concluded that the reason for the boy’s death was internal bleeding caused by the assault. While the liability of the police and the prison authorities is obvious, the role of the magistrate in this death raises serious concerns about judicial neglect. Had the magistrate taken normal precautions, when such information regarding torture is brought to their notice and ordered immediate medical attention, this death could have been prevented. From a criminal law point of view, would this conduct of the magistrate amount to criminal negligence? If it does amount to criminal negligence, should the magistrate not be subjected to investigation for homicide? Besides the issues relating to professional failures, which should lead to appropriate inquiries, this issue of criminal neglect must be raised.

b.         Deportation of British nurse Naomi Coleman:

The details of this case are also well known. The issue that we wish to raise is the order made by the magistrate for the deportation of this lady who had a tattoo of Lord Buddha on her arm. As has already been pointed out by some senior lawyers in letters published in newspapers, the magistrate had no authority to issue a deportation order on an immigration matter. In any case, what the magistrate had before him was only a B report and the magistrate was not authorized to make any judgment on the basis of such a report. What is demonstrated in this instance is also negligence: the magistrate did not examine the papers that were before him before making orders as demanded by the police. The magistrate also failed to follow the proper procedure of allowing the suspect to make a proper presentation of her position before the court.

c.          Magistrate negligence in not inquiring into the circumstances of certain deaths where the police claimed the deaths were caused by actions taken in self-defence:

Recently, there have been six cases of deaths in police custody where the police claim that the suspects were shot in self-defence when they tried to attack the police as they were taken for the recovery of arms . Besides these six deaths, a large number of such deaths have been reported in recent years. Such deaths have become the subject of public ridicule. However, the magistrates, in recent years, have accepted such police reports and come to the finding of justifiable homicide. The failures of magistrates to conduct proper inquiries and to ensure that all the evidence that could lead to a proper judgment is brought to their notice has become a serious problem for the security of persons in police custody. This practice of magistrates has gone unchallenged.

We are bringing these few matters, which are part of a larger problem involving how magistrates carry out their duties, for the purpose of seeking your intervention as the premier association of lawyers in Sri Lanka, in order to challenge such neglect, for the purpose of ensuring the rule of law and the respect for law in the country.

We would like to request that you proceed with a study into these matters by your association and take appropriate measures to bring these priority matters to the attention of the judiciary. We reiterate that the proper practice of the legal profession requires the correction of such neglect and failures in the magistrates’ execution of duties.

Thank you.

Yours Sincerely,

(Signed)

Bijo Francis

Executive Director

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Latest comments

  • 8
    1

    Grateful to AHRC for bringing these grave problems to our attention.

    However, tasks mentioned in the letter are an extremely tall order. For an utterly corrupt, rotten, Kangaroo Court sytem. Such as the one we find in SL.

    With Rajapassa’s entry to the Ballroom, through the backdoor, reserved for VP & LTTE in 2005, destruction of the already distressed Judiciary of SL has been completed.

    There is no Justice in SL now. And lawyers are complicit.

    We need a total overhaul of the sysytem. Nothing else will do.

    Cheers!

  • 4
    1

    I have already pointed it out before in this forum but I will mention it again.

    The Bar Association of Sri Lanka is simply a labour union and its sole objective is to protect the interests of the lawyers.

    Issues such as the proper administration of justice, civic rights, the rule of law and good governance are all outside the purview of the BASL.

  • 5
    1

    Thank you for taking up this issue with BASL at least. I salute for the AHRC for their tireless work for a betterment of our society. It is not a secret and well known that we are facing a grave danger for our democratic rights as a country from few powerful thug family members. It is not a secret that majority of the people are misguided and mislead by the maffia media institutions. They everything for the opposition as weak entity. But the truth is they are the ones who appointed this maffia regime. When there is maffia regime is in power , they do everything including harassments, abusing, killing and violation of the countries laws to keep the power. First is first. WE MUST CHASE THIS REGIME FIRST. Estabilsh democratic rule and values. Then we can fix the rest. VICTORY for the people!

  • 2
    7

    B Francis the Executive Director of the Aimless Human Rights Commission………familiar to a Kallathoni or an Indian and moreover appears to be an Hindian male………

    At a time when every 22 munites there is a gang rape & murder taking place in his India and Bijja Francis the Indian is writting to our Upul Malli what he should do.

    Hello Mr.Bijo, is this your version or did anyone dictate to you ??
    I suppose, it would be better if you could Mind Your Own Business closer to your back yard which is India.

    What & where you have practiced law to dictate to Upul Malli who is happily engaged in a lucrative private practice……..
    It appears though you act as a mouth piece for another and nearing the end of the month, engaged in Sri Lanka bashing for your supper…
    This may be your law practice…………

    Just mind your own business closer to India and the gang rapes & murder that take palce there…………………
    India is a high caste male orientated society to which you too appear to belong that you are numb to the low caste girls getting raped & killed.
    Probably, you are a part of it.
    Looks like Basil.F has led you up the gum tree with a tall order & you followed to gain brownie points.

    • 3
      1

      …..Looks like Basil.F has led you up the gum tree with a tall order & you followed to gain brownie points…..

  • 0
    4

    Poor Upul has been firing letter after letter to tell the world how bad our Govt is and how silly the current judges are because they don’t bend over to the wishes of the UNP and their Diaspora, TNA and Western Alliance.

    This is after taking his herd on to the streets for protest marches when their friend Shirani got the flick.

    What more can he do?. Go on fast unto death hunger strike in front of the High Court?.

    Probably this AHRC is too busy to notice.

    May be they are busy in UP trying to prevent the poor 16 year old girls getting not only raped but hung afterwards.

    AHRC is well know for the protection of human rights of the poor.

    But they get a bit mixed up when it comes to Srilanka.

    They are the first cab off the rank to blame the cops if these nasty rapists and murderers who harm the poor and the innocent are dispatched to heaven.

    And even their mate Upul goes after the cops…

    • 1
      0

      Your venomous attack is centered on the Diaspora for all the happenings
      under MR! Did you not read the news where Ranil has briefed Western
      Countries about Justice in Sl under MR and he points out that they are
      pressurizing other Issues on account of this situation. You ofcourse
      have to back the Regime as you are paid to do so?

  • 2
    0

    The lawyers in sri lanka are a different breed.Although they wear black courts, and wigs etc there is nothing in common between the si lankan lawyers and those in countries in UK, australia etc. For them it is just a way to make money. Has any sri lankan judge being cited in international courts ? I doubt very much. They are very mediocre. Now under MR their true colours are shown. Most of them are running behind MR begging to be appointed as Presidents Counsel or to the Supreme court.What more is there to say about their quality ?

  • 1
    0

    The only thing to do when you see/hear these injustices, pray to deities to punish these people.

    Politicians who steal public money,
    Police officers who take law into their hands,
    Magistrates who condone torture,
    Lawyers who fail/negligent in their duty,
    Inhuman Doctors and nurses,
    School teachers who do not teach,
    Government servants who trouble people.

    Gods punish these criminals, make them suffer exactly the same way the induce pain to others. Open the gates of hell. Make them suffer in this life.

    There may not be Gods, But let us believe at least their is power in the determination of of us all.

  • 0
    3

    Upul Jayasuriya (BASL), Please note what is taking place in AHRC Bijjo Francis’s Hindia…….Is JJ Amma safe ????????????
    Bijjo you don’t look to the sky to spit or throw stones from a glass house. Have you brought your Mother, Wife and sisters to Hong Kong? If not do so immediately as India is not safe for them according to the Aimless Human Rights Commission(AHRC) immediate release.

    FOR IMMEDIATE RELEASE
    AHRC-STM-116-2014
    June 10, 2014

    A Statement from the Asian Human Rights Commission of Bijjo francis
    INDIA: Where even a judge is not safe…….. Aiyo…… Aney….

    The rape of a judge in her residence, located in a high-security area in the city of Aligarh, Uttar Pradesh, speaks volumes about both the epidemic of sexual violence and the respect for law in India. Such an incident cannot occur in a jurisdiction where a citizen is convinced that the law will play its role in preventing and punishing crime. India is not such a jurisdiction.

    Who in India is safe when even judges are not spared? The ceaseless stream of news reports about incidents of sexual violence inflicted on women and children across the country, ever since the Delhi gang rape case in December 2012, has failed to generate a national debate about India’s failed criminal justice apparatus, forget about the critical mass needed for a transformation

  • 0
    0

    [Edited out]

  • 0
    0

    Interesting comments by Bijo – what would he know about being a lawyer?

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