By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

The simmering anger by the majority of the country’s legal practitioners in response to the executive’s unceremonious sacking of the 43rd Chief Justice of Sri Lanka came to a fairly predictable boil this week when an outspoken anti-impeachment lawyer resoundingly defeated a government backed contender in the elections to the Presidency of the Bar.

A message to the political leadership

It is difficult not to be heartened by the categorical warning that this election conveys to the political leadership of Sri Lanka. The Government may have sent its army and its police into the very heart of Hultsdorp. It may have intimidated or induced the then leadership of the Bar and others to engage in their great betrayals which, at a most crucial hour, sapped the strength of a movement that had challenged the executive head on in a most shameful political witch hunt of a Chief Justice. However, despite this ruthless stamping out of dissent, this election shows the core of determined anger that remains intact.

As this column has stated on a number of occasions, the most remarkable demonstrations of outrage to the Presidency’s assaults on the judiciary during the past few months, came from the provincial Bar Associations, ranging from almost the entirety of the Southern Bar to the far flung zonal divisions of the Central, Uva and Northern provinces. This outrage transcended political loyalties in what was undoubtedly a rare show of unity. This unity, displayed again at this election, is what needs to be sustained.

Challenges lie deeper than merely opposing the Government

And the challenge lies not in a pure opposing of the Government alone. Instead, the larger issue is about bridging the divide between the legal profession and the rest of society. Lawyers in Sri Lanka are perceived as being occupied only in their individual practice rather than being concerned about the larger issues of social justice Modern day lawyers have, as is indeed acknowledged by them, neither the time nor the inclination for wider social accountability, let alone love for the law. But as long as phrases such as the independence of the judiciary and the independence of the Bar are perceived as abstract preoccupations only of the elite, whatever struggles that are initiated will have their inherent limitations. Thus, even if the then leadership of the Bar had kept its backbone and resisted the executive to the last during the furore over the impeachment, the movement would have ultimately petered out if it had been confined to the lawyers alone.

We do not have to look far on this sub-continent for examples of positive experiments to the contrary. We should ask ourselves as to why, despite commonly inherited practices of adversarial litigation coming from a colonial heritage, other jurisdictions in South Asia have not been subjected to the ravages that have rendered us so vulnerable. The legal professions in India, Pakistan and Bangladesh are formidable forces in the political process of those countries and no Government would dare antagonize them beyond a point. The danger in provoking such antagonism was well seen in the Pakistan example when the lawyers’ movement transformed itself into a vibrant pressure group that is still able to use people power against threatening political forces. This transformation of formal legal systems to “living law” by a vigorous social action oriented Bar was backed by public interest groups together with an investigative press. The public humiliation of a Chief Justice along the lines of what we saw a few months ago in Sri Lanka, would have led to a huge social uproar in any of these countries. We are, in that sense, unpleasantly singular.

Current state of dysfunction not always the case

Yet this state of dysfunction in Sri Lanka had not always been the case. For example, the report of the Bar Association of Sri Lanka (BASL) for 89-90, acknowledges the events of that period thus; “At the end of such a year of turbulence in the affairs of State and our profession, we are happy to see the profession stronger, its independence strengthened and its position as a bulwark in defence of rights recognised even more. This report will place on record that the Bar Association of Sri Lanka was required to foster and preserve the Rule and the Rights of the Citizen in this country, as well as to hold high the honour and dignity of the legal profession. Our aim was to be just by all members of the profession and also take the necessary steps to protect their personal lives and liberty and their freedom to practise their profession in keeping with the high standards of the Bar.”

The commendable strength that the Bar displayed at that time had its own political impact. As would be recalled, when one of then President Ranasinghe Premadasa’s Ministers referred to the Bar Association as being a terrorist association, President Premadasa compelled the Minister to publicly apologise to the Bar (see the Sunday Times, July 5, 1998).

Negative impact of a corrosively politicized Bar

During recent decades however, a corrosively politicised Sri Lankan Bar impacted less and less on public life. When the Bar was cowed by the highly temperamental (to put it mildly) behaviour of a Chief Justice during 1999-2009, it stayed meekly silent. When attacks were carried out by government goons on its own members, it only engaged in ineffectual protests and issued bland statements. It displayed no initiative in regard to internal and external subversion of the institution of the judiciary and only resorted to appointing useless committees when far reaching constitutional reforms that reduced liberties were pushed through.

Rather than challenging these stupendously unjust actions, the main effort of the Bar Association was to function as a social welfare organisation and cajole the executive to provide greater facilities and privileges for a chosen few. Unsurprisingly, public respect for the Bar greatly lessened and the time became ripe for a frontal attack by politicians on once sacred legal institutions as we saw during recent months. The possibility of a Minister apologizing in regard to name calling the Bar or a judge would be unthinkable now. In fact, as we saw, the Bar and the Bench were both crudely and repeatedly insulted by this Government’s henchmen with no consequences during the witch hunt of the country’s 43rdChief Justice recently.

Granted, the great expectations with which the Bar had elected candidates to the Presidency previously have yielded to compromise, capitulation and finally utter ignominy. These are all lessons well learnt. Now it is the time to look forward. The primary task facing the new President of the Bar is how to productively harness the support displayed at this election and collectively bring the Bar Association of Sri Lanka back to a state of politico-legal relevance in this country. Certainly this is a struggle that needs to be carried out with resolute conviction and no compromise.