Colombo Telegraph

SLBA Resolution Will Test Of The Lawyer’s Determination To Defend The Independence Of The Judiciary

By Basil Fernando

Basil Fernando

Tomorrow, December 15 will be a day that tests the will of the lawyers of Sri Lanka to defend their own profession and the independence of the judiciary in the country which is the foundation on which the legal profession stands.

In more simple terms the resolution presented to the lawyers that they are to vote on is about preventing the degrading of the judiciary to be a stooge judiciary. The executive is hell bent on making an end of an independent judiciary. There are ideologues that are supporting the executive as is quite evident from those who are speaking over radio programmes such as the one which is inappropriately called ‘Peoples’ Power’ and in newspapers and other media. For example, Dr. Nath Amarakoon wrote that the Chief Justice is an employee of the executive and should behave in that manner. There are others who have vociferously argued that the judiciary should be silenced.

If the executive succeeds then it is not only the judiciary that will be degrading but the legal profession as a whole. The task of the lawyers would be to engage in unscrupulous practices as middlemen for unprincipled negotiations and even to be bribe carriers.

Therefore it is a critical time now either to succumb to this pressure or to take a very decisive position to fight back.

In a moment like this it is most useful for lawyers and judges in Sri Lanka to take a critical look at themselves. It must be admitted that the legal fraternity in Sri Lanka has failed society. It is no exaggeration to say that we have failed miserably.
The task of protecting the liberties of the citizens has not been a priority of the legal community. The people justifiably accuse the lawyers as well as the judicial system on so many counts. Just to take one example, take the case of the extraordinary delays in adjudication. The postponement of cases is unscrupulously pursued so as to defeat the ends of justice. A litigant who has no just cause can manipulate the system against the other party by paying for lawyers and getting a case postponed for many years with the hope that the other party will give up due to lack of resources or other problems arising out of such postponements. Poorer persons dragged into cases which are often fabricated may end up in suffering jail terms or other losses purely because of their poverty and the capacity of the other party to manipulate the system in their favour. There is truly a cruelty and heartlessness in the manner the justice process has been allowed to be manipulated in Sri Lanka.

Often the judiciary has also failed in their management of the system of justice. The judges cannot be unaware of the unscrupulous manner in which the court proceedings are manipulated so blatantly. However, very little attempt is made to give their minds to this problem collectively and find solutions including firm action to demand from the government the allocation of resources in order to ensure that the system of justice functions without defeating the very objectives of justice.

The other most glaring betrayal of justice is the manner in which the Attorney General’s Department has been allowed to degenerate and to use its powers unscrupulously to do actions which are illegal and unjust. The most recent example is the manner in which the power of Noli Prosequi of the AGD is so blatantly abused to do favours for those who are close to the government or are friends to someone in the department. In so many cases letters are issued to the magistrates informing them not to proceed against a suspect and to release them purely for political or personal reasons. Even a member of the Civil Defense Force (Grama Arakshaka) who doused his 16-year-old lady partner in kerosene and set fire to her was able to obtain a letter from the Attorney General’s Department requesting the magistrate to discharge him from the proceedings. And in another case a coroner in the Perediniya Teaching Hospital who was attempting to conduct a death inquest on a body found floating in the Mahaweli River, who was prevent ed to carrying out his work by the director of the Perediniya Botanical Gardens and his assistant filed a complaint. The director and the assistant were released due to a letter from the AGD in the same manner.

It is not possible to narrate here the depth to which the utterly abysmal justice system in Sri Lanka has fallen. The gist of the matter is that the possibility of seeking justice in Sri Lanka has become an impossible dream. The legal community cannot wash their hands and merely blame the politicians. It is the duty of those concerned with justice to resist everything that obstructs justice and the lawyers and judges of the country cannot claim that they have discharged this duty.

It is necessary to face this at this critical time and tomorrow’s (December 15) of the Bar Association should be a day to demonstrate to the people that the legal community is willing to mend their ways. By demonstrating their determination to resist the executive’s pressure to reduce the judiciary to the position of a stooge and by standing for the independence of the judiciary the legal profession can demonstrate they are beginning to reckon with the situation. This is not the end of the matter but it could be a beginning of them demonstrating their determination to begin a new chapter in the struggle for justice. Much needs to be done and a beginning needs to be made.

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