22 October, 2017

Lawyers, Prosecutors And Judges Should Face The Mirror: AHRC

A Press Release issued by the Bar Association of Sri Lanka has threatened contempt of Court action being taken against a deputy minister who has made some serious criticisms against the Courts and the legal profession. While it is not our intention to defend the deputy minister, we are perturbed by such threats against anyone who is publicly airing criticisms – against any real or perceived problems relating to the judiciary and the legal profession – as the damage done by the curtailment of such criticisms will far exceed any damage that may be done by such criticisms. It is prudent and wise to recall the words of Lord Denning, on the issue of the use of contempt of court for the defence of judiciary;

“…(This) is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism not do we resent it. For there is something far more important at stake. It is no less than the freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say we are mistaken and our decisions erroneous, whether they are subject to appeal or not. All we ask is that those who criticise us will remember that, from the nature or our office, we cannot reply to those criticisms. We cannot enter into public controversy, still less political controversy. We must rely on our conduct itself to be its vindication.” 

Exposed as we are to the winds of criticism, nothing which is said by this person of that, will deter us from doing what we believe is right;…” Lord Denning, [In] Regina vs Commissioner of Police of the Metropolis ex. parte Blackburn,2 W.L.R. 1204

What is even more disturbing about the statement of the Bar Association is the following statement.

“… The Bar Association of Sri Lanka notes with concern the undue and unwarranted attacks on the law enforcement authorities, the Attorney General’s Department and now the judiciary….”

What are these undue and unwarranted attacks? An association like the Bar Association should specify what it considers as the undue and unwarranted attacks on the law enforcement authorities, and the Attorney General’s Department. May we ask, as to whether is it undue and unwarranted to state that the law enforcement authorities, namely the police have failed in their primary function of enforcement of the law in Sri Lanka?

Is it an unwarranted criticism that as the prosecutor against crime the Attorney General has failed to impartially and competently to prosecute all the crimes that are taking place in Sri Lanka? Is it an undue and unwarranted criticism to say that the entire system of administration of justice is beset with undue and unwarranted delays and such delays have threatened the very prevalence of the rule of law in Sri Lanka?

None of these criticisms are new. One could refer to the most recent statement of the UN Special Rapporteur for the Independence of judges and lawyers, to see a litany of a long list of the most fundamental defects of the system of administration of justice in Sri Lanka.  One could also go through some of the previous statements of the Bar Association itself, which was honest enough to admit the fundamental problems existing within the system of administration of justice in Sri Lanka.

There are also nearly twenty (20) Communications to the United Nations Human Rights Committee (UNHRC), where the Committee has expressed its views stating large number of violations of civil and political rights committed by the Government of Sri Lanka on matters such as failures to investigate serious crimes such as murder, the Attorney General interfering to stop inquiries into murder by issuing letters to the inquiring Magistrates not to proceed with such inquiries, abuse of contempt of court proceedings violating the international norms relating to such matters, undue delay in conduct of trials, dismissal of judges without following the due process, and numerous instances where torture victims were denied redress. In the latest view expressed by the UNHRC – Amarasignhe Arachchige David Amarasignhe, Communication No. 2209/2012, where a man who was brutally tortured and massacred was denied of a proper inquiry into his death by the intervention of the Attorney General himself. 

As for our part, the Asian Human Rights Commission in a recently published book titled “Torture as an Entrenched part of Cruel, Inhuman and Degrading Legal Systems” (300 pages), have narrated in detail the manner in which Sri Lanka’s system of administration of justice has fallen into a state, where fundamental flaws have emerged which obstructs the people from obtaining justice.    

The Bar Association should be aware of the enormous obstacles faced by the lawyers throughout the country in the practice of their profession without fear or favour. It is well aware of the recent attack on a lawyer where he was abducted, severely beaten, threatened to be killed at gunpoint, threatened with sexual abuse, and robbed of his possessions; the lawyer later complained that the Ragama police had deliberately sabotaged the inquiry. The Bar Association itself not long ago, protested when an attempt was made by the Ministry of Justice through a Gazette Notification to limit the access for lawyers to their clients in custody, stipulating that they could have such access only after interrogations are done.

The Courts and the lawyers exist only for the purpose of ensuring that the people in the country – irrespective of their status, gender, race and language – could obtain justice. It is only the blind who could deny that the actual realisation of that basic aim is far from a reality in Sri Lanka.

When criticisms are made for whatever purpose they may be, the wise course of to follow is to listen carefully and utilise every opportunity to achieve radical reforms that are essential, if the rule of law and the recourse to justice is not to become an illusion for the people who seek such justice.

The legal profession is a noble profession to the extent that the lawyers are willing and capable of leading the fight for justice. If we lose a fighting Bar, we virtually lose the battle for justice.

It is far better to look in the mirror and recognise whatever that is ugly that may have begun to emerge in ones’ own appearance.  Such honesty and frankness does no harm. However, to hypocritically evade criticism, is to let down the legal profession, the independence of the judiciary and the freedom for the people to live without fear and suspicion. (Statement issued by the Asian Human Rights Commission)

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Latest comments

  • 9
    0

    Wijedasa was dull and lackadaisical in his Ministry. In all this what Ranil said once is recapitulated as:
    “Let us allow them (FCID) to do their duty. This is not a game of hide and seek. Obtaining evidence should be done skilfully. Lawyers for the defendants are waiting for an opportunity for a loophole. This is like striking with a two-edged sword. If the target is missed, the striker too, will be cut.”Supporting the PM’s views, a renowned criminal lawyer told us, “Rajitha, Champika, Arjuna and Fonseka do not have any knowledge of the law. What they want is to have media hypes saying Namal is caught, Gota is caught, Basil is caught. Then, the people will not question them about the increase in VAT and the cost of living. Especially, evidence in financial crime should be built very skilfully, like bringing out a valuable artifact hidden by the sand sheet of time. In a crime, the case should be built upon circumstantial evidence if there is no eyewitness account. So, if the CID goes to act according to the haste of politicians, such cases can be brought down easily.” As webed on 18-5-2016

    • 19
      0

      Can The Bar Association of Sri Lanka conduct an investigation into all those who have been handling the Rajapaksas Criminal Network cases!?

      If any evidence has been tampered with or gone missing who is accountable!?

      The Bar Association of Sri Lanka should not protect lawyer who are involved in any such activities…

      So instead of threatening legal action against those being critical and questioning the shortcomings of the Attorney Generals Department (this makes them look guilty to have to threaten legal action instead of explaining themselves!) investigation who is responsible for any delay or obstruction coming from the AGD..

    • 9
      0

      This! This ! BASL The Bar Association of SL have opened their filthy mouths at this time a wrong time for them.
      They should receive ALL THE VENGEFUL COMMENTS FROM THE Disappointed general public.
      Greed before the Profession !! That’s what happened to our country of Lawyers!! Eh!! I am seething!! With anger!!
      Threatening act is not in the Law Books BASL!!

    • 9
      0

      BASL has put their FOOT IN THEIR MOUTHS.

  • 17
    0

    Dear one shot Ranja, do not worry the 6.2million masses will stand by you.
    The Bar association is a political tool of the Jarapaksas.

  • 15
    0

    Why is the Judiciary taking such a long time to give a simple verdict on the D A Rajapaksa museum? Is the bloody Judiciary scared of Bayagota or some hidden Dealdasa obstructing???

    Sira and Ranil have a lot to answer without passing the ball here and there.

    • 0
      1

      The truth about this is that Judiciary has no powers over judiciary. The political power hijacked the judiciary into their hands since the power of this nation handed over to Buddhist Sinhala Fundamentalists from British Occupation. In fact, the whole governing structure is controlled by Buddhist Sinhala Fundamentalism. There is a difference between Buddhist Sinhala Fundamentalists and normal Sinhala People. The normal Sinhala people are kept in the dark about truth under the cover of fear. There is no threat to the Buddhism or Sinhala people throughout the history of this nation even under foreign occupation but the fear was created artificialy by those power structure who took over the power in 1948. The political power who took over the power are well trained, mesmorised,and poisened by British. They know the taste of power and how to cheat ordinary people and how to divide people. As long as we break that culture, not only judiciary but the complete governance will not change.

  • 9
    0

    Bar Assn. should not be treated as a private property or launching pad to cause unethical statements or threats to criticisms. Ali Sabry is a biased person. BA should take this into account. BA should concentrate on policy matters which affect the populace instead of personal needs of few lawyers.

  • 7
    0

    ” THEMIS “. The Lady with the symbol of Justice , The Goddess of Justice, A Blind Folded Woman holding a scroll/ sword in one hand and the Scale in the other . The Scales , Sword , Scroll and Blind Fold all Reinforce the concept of Justice.

    ” LAWYERS , PROSECUTORS , AND THE JUDGES SHOULD FACE THE MIRROR ” by AHRC
    How right and proper , pointed appropriately at the right time by the AHRC.

    THE SRILANKAN LOW YERS sorry the Srilankan Lawyers have stooped to the lowest level equalling the Corrupt Politicians or even worse than the corrupt Politicians in the act of Greed!!
    Now the Foxes guarding the Chicken Coop says no one can have a say of their Bogus Lawyers and their Crookedness.
    This is democracy! Criticism is made for the BETTERMENT OF OUR NATION SRILANKA.
    THE justice system cannot get away with this kind of Threats,

    The Mahanayakes once said they have the power and law to deal with Thieving, Child Molesting, Alcoholic UNRULY MONKS AND THEY SHOULD BE DEALT IN THEIR COURT OF LAW??
    So again THE FOXES GUARDING THE CHICKEN COOP”!!!??
    No wonder it’s called THE BANANA REPUBLIC!! Or MANN..A..NN..A REPUBLIC….

  • 15
    0

    In my view, absence of a proper regulatory body for lawyers in Sri Lanka has caused tremendous damage to the legal profession. It is my firm belief that similar to the England and Wales, there shall be a statutory body established by law to regulate the legal profession in Sri Lanka.

    Establishment of such a independent body will protect good lawyers who perform their office faithfully according to their constitutional pledge made by them. There is no question that Bar Association must support any such move that would guarantee the removal of all undesirable elements from the law practice.

    During the month of August 2017, I made a request to the Bar Association of Sri Lanka and asked for the following information and also made a similar request from the Law Society in the UK.

    The total number of complaints received against the Solicitors for the year 2016

    How many of them were suspended
    How many of them were removed from the Roll
    How many of them were imposed fines or forfeitures
    How many of them ordered refund the abused funds

    My professional body in the UK promptly provided with the following information about the action taken against the lawyers for the year 2016

    11,383, complaints have been received against the solicitors

    76 of them have been removed from the practice

    21 have been suspended

    55 solicitors have been fined for various abuses

    I want to make a comprehensive report on the sorry state of the legal profession in Sri Lanka, which would be published for the information of my fellow citizens, but I believe that it is nothing but fair to afford a reasonable time to the Bar Association of Sri Lanka to respond to my request.

    • 6
      0

      Dear Mr. Nagananda Kodituwakku,
      I fully agree with you. Judiciary in SL and legal profession itself are perceived as totally rotten by the public. That cannot be news for BASL. Real oversight of Judiciary and lawyers by regulators is a must. Only such transparency will restore, non-existent confidence in our legal system. Rather than doing that, corrupt BASL seeks to swing “Contempt of Courts” sword in all directions, like a drunkard.
      Total joke!
      PS: I am so thankful to you for the incredible service you give to our beautiful country. Now for years. Single handed. Against all odds. Decent people of this country stand with you. Run for Presidency in 2020! You have my vote. Find a way to get your message to the stupid masses. If Sirisena can, so can you!

    • 4
      0

      Regulatory body is needed not only for MOJ but to all other Ministries. Legislators are only jokers who had usurped the rights of the innocent people in the name of Buddhism at convenient times. Justice should not have a taint of discrimination. Legal profession should not stoop low to this extent if the lawyers are as professionals as claimed.

      • 1
        0

        Bar association and GMOA are unions. They won’t monitor, control and manage the profession. Lankawe political culture is very low grade. Employment culture contain utmost cheating. It appears, at least the main three professions, Medicine, Law and Auditing has to be managed by legally created independent bodies. They can be reasonable fair to the professionals and by implementing some rules and ethics, can keep up the public confident on those professions. If ETCA is signed, something may change. But I think the ETCA talks is only about keeping India cool while selling assets to China. So it does not look like in the new future any tangible things may come out of ETCA.

  • 1
    2

    As a layman of law, I let my feelings afloat as follows:

    1. WR being ousted from his portfolios was necessary, yet NOT DONE properly.
    2. WR was a necessary “link”within the cogwheels of the Government but, the UNP back benchers who do not see the “Big Picture” retaliated against WR, thus forcing RW to the course of action s evident today.
    3. RW is fully aware that this course of action is very detrimental to his Yr 2020 plan.
    4. Other seniors of the UNP are opposed to this move, but yet have to say “Aye” due to the influence by RW and his “kitchen Cabinet”.

    Is such, you may see that this is an “anti governance” step rather than a coalition move that would result in a better bondage within the various communities of people of Sri lanka.

  • 5
    0

    My Dear Nagananda,

    Do you think Our Justice system is not corrupted?

    • 0
      1

      One news article said, tht AG or the deputy AG went to meet Ranil Wickramsinghe. He went there and the press release was political because he was talking about Wijedasa Rajapakse. Besides once AG meets a politician he is obliged to take political decisions. The result is AG will not ask Ranil wickramsinghe to come and talk about his involvement in Central bank Scam. UNP writers come and blame Wijedasa Rajapakse. It looks firing of WR was premeditated. They wanted Rajapakses brpught there even though President wanted it investigated.

  • 6
    0

    I have already charged 5 Supreme Court Judges for Judicial Corruption. I believe this is good enough for any concerned citizen to arrive at a fair decision about the judiciary in Sri Lanka.

    Those who wish to see more details about the case that I have initiated I invite them to visit the Petition filed in Supreme Court still not been supported for Notice.

    The link is provided below.

    https://www.dropbox.com/s/xg8tye9fuignyyf/2016-03-28%20-%20PETITION%20TO%20SC.pdf?dl=0

  • 0
    1

    Hey CT, this is the first time I saw you behind news. Where is Thalatha Latha, the Queen of Justice to protect Goddess of Justice?

    • 1
      0

      Champa

      Hah! Hah! Hee ! Hee!! Ho! Ho!
      You just wait for the Queen of Justice Thalatha Latha to whip up the Sword briskly and quickly to clear the mountain of files awaiting for her at the BASL.
      Good Luck

      • 0
        2

        Analyst

        Nooo, not at all. Complete opposite. I was cynical. Thalatha, the Queen of Justice will cover all the corruption of Yahapalanaya with her saree.

        The Goddess of Justice is a symbol for natural justice and rational justice who is portrayed balancing both scale and the sword. Thalatha is nowhere near the Goddess of Justice. She is a product of a corrupt, unfair, prejudice, favouring and political witch-hunt government. She is there only to make sure those Yahapalanaya vices are protected at the highest administrative level.

        • 0
          0

          Champs
          I was cynical too awaiting for Our new queen ( Minister) of Justice in Saree to do whatever ????
          Magic?

    • 0
      7

      The Bar Association has vowed to take action against Ranjan, the “Deputy Minister for Social Empowerment, Welfare and Monkey Heritage”, on charges of contempt of courts which is a must!!!

      It is time to get the monkey down from the tree and teach a lesson for his ever irritating antics. Maintaining this weed is an utter waste of public money. So annoying.

      • 0
        0

        Oh really.We like Rajan for exposing the truth.Lawyers are pitilessly minting money by postponing cases for decades,right under the noses of judges.
        It time we investigating this industry.

  • 0
    0

    Ranjan may end up having a difficult time. Ali is as strong as Deal. Difficult to deal in court and outside too. He is a man of Old Royals defender by job. That means Yahapalanaya will not go against him. No FCID or CID will inquire into the allegation of the past urban development cases. Like all other Muslim leaders and activists, he has his backing from both, SLFP and UNP. Ranjan may face a case IGP Jeyam filing, Mokan Peiris arguing and Buffoon De Silva delivering the verdict. A good chance Ranjan biting dust on this from Ali.

    No more Privy Council after SWRD was sacred by Kodeeswaran. To save himself from Batalanda, Ranil has blocked ICC. Only hope is Old King get back on foot and Goto UNHRC to appeal against Ali and the BAR of Lankawe.

  • 3
    0

    I was the petitioner in a court case once. A defendant who kept engaging persistently in delaying tactics was asked to pay costs to me and the other respondents on two occasions. On one occasion, when the case was called for trial after a five month interval, he said he wanted to file an amended answer! Anyway, he paid up dutifully on both occasions, but neither I nor any of the defendants who were awarded costs received the money. The lawyers pocketed it all!

    But the sad truth is that this kind of behavior is one of the less egregious practices of lawyers.

  • 0
    0

    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 2
    0

    NK.
    If judiciary is not responding with ethics, how can we seek justice from such a system. The entire legislature then becomes a bunch of jokers?

    • 4
      0

      Ad

      Thats why our country is called The Banana Republic of South Asia.
      Happy with that??

  • 2
    0

    System is crooked. Politicians can stay in their position while they are being prosecuted. See how many go to jail or will pay back. As far as I know Only S. B. dissnayake went to jail because CBK wanted it. IF not every one is acquitted. It is a corrupt system.

  • 0
    0

    The legal profession stinks.
    [Edited out]

  • 0
    0

    Read the following and see how biased the AG department now is: Former Justice Minister Wijeyadasa Rajapakshe’s statement that the Attorney General was summoned to Temple Trees recently and threatened by a group of UNP MPs to take up some cases within two weeks must be probed. Will the BASL care to inquire from the AG whether he was harassed and threatened as alleged by Rajapakshe?

  • 2
    0

    Lawyers are there to defend the client just like doctors treat patients without asking questions. Judges can pass a verdict based on the evidence produced by the prosecution. If the prosecution is not rigorous, the case fails.
    For example look at the case highlighted by AHRC in CT of March 22, 2017 “Rape Suspect Of A 15 Year-Old Girl Released Without Proper Investigation”
    Of course a good judge should be able to see through a cooked up prosecution but unfortunately they do not – probably connive.

  • 1
    0

    I hope you would recall that the then President of the BASL blasted the entire Supreme Court at ceremonial sittings making the Judges squirm in their seats trying hard not to fall off upon certain corrupt judicial appointments during the Rajapaksha era.
    He had the guts to tell them to their face in the presence of large gathering of members of the legal profession and all the Judges of Hulftsdorp.

    He said ‘ those who are not fit to hold such high Judicial office cringe and scrounge and fall at the feet of the executive seeking appointments that do not legitimately belong to them’.

    When he boldly made these statements the entire EXCO of the BASL supported him as he made the bar proud.

    There were no contempt proceedings against him. There have been and there are many illustrious judges on the bench.

    This same President BASL then did not mince his words and refrained to welcome that rogue Judge Upali Abeyratne.when he was appointed to the bench on the same day he welcomed two other judges who were appointed in the presence of Upali Abeyratne.

    When ‘Justice’ Priyantha Jayawardena who In fact was the legal peon to Basil Rajapaksha was appointed to the bench he cynically referred to certain political appointments he was holding and said that those are the circumstances in which he was appointed as a judge of the Supreme Court.

    In these same ceremonial sittings he charged the then Executive ( President) for overlooking Justice Sri Skandaraja and Anil Gunaratna as they were a part of the bench that issued a writ nullifying the impeachment process of Dr Shiranee Bandaranayake.

    Of course he nearly made the Supreme Sacrifice when there were killer squads unleashed to follow him.

    The difference in the BASL today is that Ali Sabry who is the private counsel of Gotabaya Rajapaksha has taken over the BASL without the vote of the General Membership. He has got UR De Silva the namesake President on his palm.
    When Gota called the lawyers appearing for Lasantha Wicrematunga of Sunday Leader, ‘traitors’ Sabry continued to appear for Gota.
    This is the difference.

  • 0
    0

    This can also be said for some NGOs

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