By Basil Fernando

( March 04, Hong Kong , Sri Lanka Guardian) A few decades ago, Bunty De Soysa was one of Sri Lanka’s leading criminal lawyers; at one point, he was also president of the country’s Bar Association.In one case, he represented a group of young leftist radicals in court who were charged with offences relating to their political activities. During the course of the consultations for this case, the young radicals teased their lawyer, saying: “You lawyers only do these things for the money.” Mr. Bunty Soysa retorted with “one day, when you don’t have lawyers, then you will understand their value.”

Lawyers still exist in Sri Lanka, however, their power and influence have greatly diminished. Under those circumstances, people are beginning to understand what it means to be without vigorous and fearless legal representation. Today, the Sri Lankan public is forced to reflect on how the capacity of lawyers to protect the individual liberties of their clients has waned, and are beginning to examine ways in which they can fight back to regain this essential service.

The loss of Sri Lankan lawyers’ capacity to effectively advocate for their clients is intertwined with the undermining of the judiciary’s capacity to protect the rights of individuals from deep inroads into their personal liberties by the Executive. When we speak of the independence of the judiciary, we refer to the judiciary’s capacity to protect the individual against an overpowering state. However, since the changes to the Constitution made in 1972 and 1978, the capacity of the Executive has been enlarged and the role of the judiciary has been proportionally diminished. As such, constitutional changes which undermine the separation of powers is a foundational reason for the changes that have taken place in the judiciary, and in the role of lawyers.

With the expansions of the power of the Executive at the expense of the power of the Parliament and the judiciary, the institutional safeguards that once prevailed within Sri Lanka’s legal framework have undergone a transformation. The positioning of the Executive over the entire system of governance has resulted in the deep diminishment of Sri Lanka’s rule of law system, and by extension, the role of the law itself.

The various orders that the Executive is able to make while ignoring all required legal framework has created limitations on the power of the law. This tremendous transformation which relates to the law itself has received little attention in public debate, partly because as far as laws in legislative enactments are concerned, there has been little change. Indeed, the laws (more or less) exist in the same way as in the past, however, the Executive can ignore these laws without incurring any legal consequences on that basis as the capacity of the Executive to ignore the law has greatly increased.

It may be useful to illustrate the way in which the Executive can ignore the law and suffer no legal consequences. Let’s take the case of an emergency law which gave the power to a police officer not less than the rank of Assistant Superintendent of Police to authorize the burial of a dead body. This kind of emergency regulation virtually suspended the normal laws relating to the dealing of deaths under suspicious circumstances. Normally, such a death would have to be brought to the notice of a magistrate by the relevant police authorities and a judicial process would then determine the cause of death. This judicial process will ensure that if criminal activity is a factor in the circumstances of the death, then such activity will be investigated and the alleged perpetrators would be brought to justice. However, when an officer no less in rank than an Assistant Superintendent of the police authorizes the burial of a body, he is under no obligation to follow the required legal procedures. Thus, whether the person in question was killed or died under natural circumstances would remain an unresolved mystery. Such a regulation can also create the conditions for secret burials; once a death is not registered as required by law, then burials can take place in secrecy and the whole matter would incur no legal consequences for possible perpetrators.

Such changes - either by way of emergency regulations, national security laws or simply by the direct orders of the high officers of the Executive - have resulted in the displacement of Sri Lanka’s required legal processes.

Moreover, the capacity of the Executive to ignore the law can exceed far beyond the laws relating to criminal procedure or administrative matters, and can even reach the Constitution itself. For example, under the 17th Amendment to the Constitution, the important appointments, promotions, transfers and dismissals of public officials in some of the main public institutions can be done only by commissions appointed by the Constitutional Council. However, the Executive could ignore the constitutional provisions. The Executive could ensure that the Constitutional Council does not come to be, and could also ensure that such appointments, promotions and the like are made by the Executive. That not withstanding, these appointments, promotions and the like will remain valid as practical methods for dealing with some issues will become impossible if proper the legal process is to be observed.

When the law can be ignored, the role of the lawyer is naturally, greatly lessened. The basis on which a lawyer can make interventions on behalf of his or her clients is the law itself. The lawyer could insist that the laws relating to a particular issue that affect his client have not been observed or have been violated entirely. However, once lack of observance or violation of the law is not a matter of significance, the lawyer is reduced to making various kinds of protests which do not have any consequences before the law.

When the importance of the legal process is reduced, the role of the judiciary is also reduced. In many instances, the judiciary is weakened to a position where there is almost nothing they can do to intervene for the protection of the rights of an individual who may have suffered adverse consequences due to the action of the Executive. The judiciary may be able to point to particular laws that should have been observed, but have not been observed. However, non-observation may have no consequences. As such, the judiciary becomes incapable of providing the redress that the law requires the judiciary to provide.

Once the judiciary cannot provide the appropriate redress, then the citizen will find little reason to go before the judiciary to make their complaints. In this manner, the whole process of citizens’ interventions before the courts to seek legal redress suffers enormous setbacks. This is the situation that has existed in Sri Lanka for several decades now; the powerlessness of the courts to provide redress results in the equivalent powerlessness of the lawyers to make effective interventions before the courts.

Added to this, are the intimidations, harassments, death threats and even assassinations that may be posed to lawyers who insist on the law and attempt to carry out their obligations within the framework of the law. For example, a judge who hears a case which the Executive does not wish to make an effective intervention on may face serious consequences. An atmosphere of psychological intimidation may prevail within the judicial circles themselves, and judges may become confused as to whether they are able to intervene on a particular matter and give the type of redress that the law, under normal circumstances, would allow them to provide.

When there is such an overwhelming atmosphere of intimidation and fear within the judiciary, this will naturally affect the role of lawyers. The lawyers would not know whether going to court would produce the type of result that they would wish it to produce within the legal framework of the country. As such, a semi-conscious process of distrust of the judicial process takes place which creates a deep sense of alienation between the judiciary and lawyers.

This is not necessarily a particular distrust they may have regarding ‘good’ or ‘bad’ judges; rather, this arises from an overall scepticism about the system itself. The belief or perception that the Executive is able to correctly or otherwise get their way and deflect various attempts to achieve legal redress, creates a psychological climate which is entirely adverse to the atmosphere needed for the functioning of a proper legal profession.

Thus, the questions of protection of the individual are deeply intertwined with the problems of the independence of the judiciary and with the role lawyers play under the present context. Without dealing with these overall problems and achieving substantive changes in favour of the building of the basic rule of law systems, the very survival of the legal profession as a profession capable of protecting the rights of the people through the law will remain very much under suspicion.

ARCHIVES FROM AUGUST 2007 TO JANUARY 2015