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Erasing the memory of law

An independent judiciary and the legal profession

( November 18, 2013, Colombo, Sri Lanka Guardian) The announcement by the de facto chief justice, Mohan Pieris, to introduce regulations in order to limit the maximum age to practice as a lawyer to 70 and to impose further regulations for the renewal of the licenses of lawyers every two years, comes as no surprise. The government's aim is to bring the military into all areas of life and to spread an authoritarian rule through the entire fabric of society. This implies the uprooting of the legal system as one based on rule of law and the independence of the judiciary to one which is regulated by the executive. The task assigned to the de facto CJ is to reshape all aspects of legal and judicial practices to suit this radical transformation towards a completely controlled system in which the executive can do whatever it wishes, irrespective of what the consequences are to the legal rights of the individual citizens of Sri Lanka.

This new remolding requires the erasing of every possible agency that would resist it. Naturally, it is the lawyers that the people would resort to when they are faced with assaults on their legal rights. The role of the lawyers under these circumstances is to educate the litigants on their rights and also to assist them in every possible way to fight for their rights within the framework of the law.

What Mohan Pieris is saying is this: the game of playing by the legal rules is now over. Of course, this is not one of the bright ideas he has got through some inspiration or during his sleep. He is merely indicating his master's scheme and trying to make it appear as if it were his own.

Why this sudden interest in the retirement age of lawyers that exists nowhere else in any democratic jurisdiction? Pieris' answer is that these lawyers above the age of 70 are unable to advise their clients properly and they are losing cases. However, if one were to make a list of cases decided in his short tenure in the Supreme Court it would not be difficult to list many cases which have been thrown out, not on the basis of legal principles and often not even with a written judgement stating the reasons for the decision, but only because the demands of some parties were against the wishes of the executive. The advice of Pieris to lawyers has been that they have duties to the nation. That jargon does not belong to law as expressed within democratic jurisdictions but that is quite familiar terminology of countries where dictatorships prevail. For example, within the Soviet Union it was the duty of everyone, including lawyers, to defend the socialist form of government and socialist property. If the lawyers were to attempt to safeguard the rights of the individual, that would go against the very ideological foundation of that legal system.

Pieris has also been quoted as saying that the lawyers should take cases against the government agencies for discussion with those agencies and should not encourage litigants to bring the cases before the courts. This is the new order of things.

Naturally, those who would resist this 'new legal order' would be lawyers that have their roots in the common law tradition. Such lawyers do not take their instructions on the basis of arbitrary guidelines by anyone, including any chief justice. They do not see the chief justice as anyone more than one among the rest of the members of the Supreme Court, having no more power than those judges. Having knowledge of a tradition and also the knowledge of how the law has been practiced in better jurisdictions they would be guided only by the law and nothing else.

Lawyering is a profession and not a job. It is not a job practiced under an employer. Neither the chief justice nor the government is the employers of the lawyers. There may be lawyers who work for the government or for companies. The government and the companies can make regulations over those who are employed by them. However, that is limited to such employment. The regulations of a profession must be those which are designed and accepted by the professionals themselves who exercise their will through their associations. The professionals should take action relating to those who cannot any longer carry out their obligations through their own disciplinary processes. The clients can resort to such professional bodies if they have grounds to complain about the services that have been rendered to them.

There is no basis at all for the chief justice to interfere into this area which belongs to the legal profession itself.

If the legal profession succumbs to the interference brought about on behalf of the executive the people of Sri Lanka will lose the assistance of an independent legal profession to fight for their rights. What is at stake is not merely the rights of the legal profession but the rights of the individual citizens of Sri Lanka.

The essence of an authoritarian legal system is to displace the central importance of the individual and his or her rights. If this core value is lost then the legal system as a whole is lost. The private property and individual rights will become a plaything of the executive.

It will not be long before military men themselves will be assigned to the places occupied by judges and lawyers. The people in Myanmar (Burma) are now struggling to rid themselves of the regulations and the personalities imposed on them during the dictatorial regimes and to rebuild an independent legal system. They have had the taste of chief justices and other judges controlled by the executive and also of military men who occupied the place of the judges.

As Sri Lanka is now entering that path it would be a good exercise for the leadership of the Bar Association of Sri Lanka to visit Myanmar and take a close look at the taste of things to come. It would be a pity if they were unable to open their eyes now or are indeed, afraid to do so.

Erasing of the law, the independent judicial system and the independence of the lawyers is now very much on the agenda in Sri Lanka. it all depends now on the capacity of the legal profession to resist and to defend its inherent rights as an independent profession. And what this means to the people as a whole is about their rights as individuals. Whether they want to be merely a cog in the machine is something they must themselves decide NOW.

| A statement issued by the Asian Human Rights Commission