SRI LANKA: New president to the Bar Association of Sri Lanka brings a time for reflection and reform

The Asian Human Rights Commission congratulates Mr. Desmond Fernando on the occasion of being elected as the president of the Bar Association of Sri Lanka.  Mr. Fernando’s election has come at a very crucial time when the rule of law in the country has suffered an exceptional collapse, the independence of the judiciary has been questioned both internally and externally, and the quality of the legal profession itself has been undermined due to many factors.

In seeking the candidacy for the Bar Association, Mr. Fernando has expressed his sole reason for contesting as, “the prestige and the standing of the legal profession has never been so low in the history as it is today….The legal profession plays a pivotal role in the administration of justice, and it is the legal profession that must analyse what has gone wrong. It is the legal profession that must then take the initiative to put things right. This must be done at once. And in doing so, we must be innovative, fearless, challenging and effective. Whilst the Bar must act in cooperation with the judiciary at all.”  We hope that the new president will vigorously pursue these aims as these issues have needed to be addressed for quite some time now.

We would urge that the Bar Association under its new leadership address the following problems urgently:

That the integrity of the profession vis-á-vis all other institutions be reasserted.  All other institutions include, in particular, the police and the judiciary.  With regard to the police, there are wide-spread allegations, particularly in the Magistrate’s Courts, that police officers attempt to dominate lawyers and that often even work is assigned by the police to some selected lawyers from whom commissions are obtained.  Although complaints to this effect have been raised by a branch association in the past and observations have been published in the newspapers, nothing significant has been done to-date.  Dealing decisively with this issue and taking up the demand that the Bar Association has put forward in the past for proper representation by lawyers of the choice of suspects at the police stations should be reasserted.  The dignity of the Bar is very much at risk if the public perceive that lawyers can be bullied by the police.  The Bar Association can seek the cooperation of the Inspector General of Police and the National Police Commission in resolving this issue.

That as the president himself has observed there has been, on occasions, a diminishment of the recognition of the legal profession by the judiciary.  There are so many complaints that many members of the legal profession make in private, but are unwilling to air in the public, due to the fear of repercussions to themselves or their professional practice.  An essential element of the legal profession is to be able to practice without fear.  This position needs to be re-established if the citizens of Sri Lanka are to get the best professional services from their lawyers, which is an essential element of equality before law in practice.

The plight of the poor in particular needs to be looked into urgently.  Although there is legal aid of a sort in Sri Lanka, this does not in any way compare with the developed legal aid systems now practiced in many countries in the world, including several countries in Asia.  A proper system is required for making application for legal aid.  Provision of qualified lawyers for cases, which are undertaken, is required so that no disparity is created between the rich and the more powerful sectors of society against the poor, for whom often, legal aid offers only the services of much less experienced lawyers.  This should also be accompanied by speedy inquiries into the allegations of improper conduct on the part of lawyers by clients.  It was quite recently that one such person who was assigned a lawyer form the legal aid commission of the Bar Association complained that his lawyer acted against his written instructions in a fundamental rights case.

Sri Lanka is a party to the protocol of the International Covenant on Civil and Political Rights (ICCPR) and has also ratified several other covenants and conventions including the Convention against Torture (CAT).  However, respect for the treaty obligations arising there has remained very poor.  Part of the reason is that the legal profession itself has not been properly educated on Sri Lanka’s international obligations and the nature of these.  Backward attitudes remain within the legal profession itself on these matters.  Thus, a vigorous defense of these legal principles has not yet adequately developed in Sri Lanka.  The result is that the citizens of Sri Lanka do not get the necessary legal backing in order to have the benefit of the rights which are available to them in terms of these international obligations.  The Bar Association can play an enormous role in improving the quality of the legal service to the citizens on these matters and thereby help to improve the protection of human rights in Sri Lanka.  For this purpose the Bar Association should in particular try to improve the quality of its human rights units in consultation with the international organisations of lawyers and others involved in the promotion of human rights.

The reestablishment of the rule of law in Sri Lanka will remain a distant dream until one particular problem is adequately resolved.  This is the problem of the delays in adjudication in criminal matters, civil matters and in the area of public law.  The delay in relation to adjudication in criminal matters is perhaps the major root cause for the increase of crime.  The old legal adage, that the promptitude of punishment is the best deterrence, has not been given any attention in Sri Lanka.  The time from the commission of a crime to the completion of investigations, the non-summary inquiries at the Magistrate’s Courts, the filing of indictments at the Attorney General’s department, the time taken to complete the trial in a High Court, and the time taken for appeals, will often take between seven to ten years, or even more.  During this time serious criminals will remain at large accept for short periods where bail is denied.  They have the capacity to intimidate witnesses and even to kill them.  Fear prevents witnesses readily cooperating with the criminal process.  It is no surprise that the conviction rate is said to be only four percent.  There is no artificial solution to this problem as, for example, increasing pressure on courts to quickly dispose of cases.  What needs to be done is realizing the need for increases in courts, judges, prosecuting officers and more qualified investigators.  The Bar Association, representing the lawyers of the country, can play a significant role in shaping local and international opinion for resolving this problem.

Finally, one area in particular in Sri Lankan law that needs immediate formulation and improvement, is that of contempt of court law.  The problems in this area in Sri Lanka are quite well known to the legal profession in Sri Lanka and also to the international organisations outside the country.  The Bar Association should take speedy steps to activate all the relevant actors in this area.  In particular, the Bar Association should inform the public about all matters involving the rule of law within the country and educate people about their rights.

Document Type : Statement
Document ID : AS-17-2005
Countries : Sri Lanka,
Issues : Judicial system, Rule of law,