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The rights of weaker segments must be safeguarded: BASL President

2 years ago

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By Saliya Pieris   I am deeply honoured by the confidence placed in me by the Bar, in electing me as the President of the Bar Association of Sri Lanka (BASL). I am humbled by the support and strength I received from the members of the Bar across the country and from both senior and junior members of the Bar, in what was a tumultuous election campaign. This year’s election saw the highest turnout ever in the history of the Bar. It is a testament to the Bar’s dedication to the rule of law, the independence of the judiciary, and to the common values we share. I will do everything within my capacity to honour the confidence and trust that you have placed in me. I am also aware that I am bound to serve all members of the Bar and I am conscious that I have drawn support from a wide cross section of the Bar. I believe in a Bar which is united and I believe that we must look to the factors which unite us rather than to those factors which tend to divide and separate us. A united and strong Bar is essential for the strength of this Association. I am conscious of the role which the President of the Bar is required to play. The Bar must continue to honour its objectives of maintaining the honour and the independence of the Bar and the judiciary. While maintaining its independence, it is also necessary for the Bar to be non-partisan and to take its decisions based on policies and principles. I am committed to the objectives of the BASL, amongst which are the upholding of the rule of law, safeguarding the independence of the judiciary, and fostering the fundamental rights of the people. The promotion, observance, and protection of human rights and liberties including the right of access to courts are an essential component of the rule of law and are among the objectives of the BASL. It is in this spirit that for many years the Legal Aid Foundation of the BASL handled cases of detainees in order to secure their rights. In my view, the BASL must play a positive role in respect of the fundamental rights of the people including rights which are of public importance such as the freedom of expression – which is the foundation of all other rights, as well as environmental rights. In its 1968 publication titled “The Rule of Law and Human Rights”, the International Commission of Jurists observed that, “in a free society practicing the rule of law, it is essential that the absolute independence of the judiciary be guaranteed. Members of the legal profession in any country, have over and above their ordinary duties as citizens, a special duty to seek ways and means of securing in their own country, the maximum degree of independence for the judiciary”. The Bar will continue to be committed to ensuring to a maximum degree, the independence of the judiciary and to seek ways and means by which the independence of the judiciary can not only be safeguarded but also be enhanced. The Bar should not hesitate to let its views be known whenever the rule of law or the independence of the judiciary is imperilled. In fact, the objectives of the BASL require the intervention of the Bar in situations of national importance whenever the rule of law or the administration of justice is affected. In this context, the BASL needs to continue to examine and make representations to the state on how best the independence of the judiciary should be safeguarded and the principled position taken by the Bar Council during the passage of the 20th Amendment to the Constitution Bill, in this context, is noteworthy. The manner of judicial appointments, the need to secure checks and balances in the powers of appointment of the judiciary, the need for greater openness and transparency in judicial appointments, the need for a proper process for the removal of judges in terms of the Commonwealth Latimer House Principles on the Three Branches of Government, the need to strengthen the independence and integrity of institutions including of commissions such as the Commission to Investigate Allegations of Bribery or Corruption (CIABOC) and the Human Rights Commission, and the powers of commissions of inquiry in respect of ongoing cases, are all matters which must be carefully scrutinised by the Bar, keeping in mind its primary objective. Whilst the Bar seeks to safeguard the independence of the judiciary, it is equally important to the rule of law that the rights and privileges of the Bar be secured. The support of the judiciary at all levels in securing the rights and privileges of lawyers is essential. On 31 July 1964, during his farewell address, Chief Justice (CJ) and Queen’s Counsel Hema Henry Basnayake observed as follows: “Under our system of justice, the bench and the Bar are components of one unit. The impairment of one inevitably affects the other. It behoves the bench therefore to uphold the rights and privileges of the Bar, and the Bar to guard the prestige and sanctity of the bench.” In relation to the independence of the Bar and the rights and privileges of its members, it is necessary to safeguard and strengthen the rights of attorneys-at-law in different spheres. During my visits to the Bars throughout the country, and in the course of numerous discussions with members of the Bar, concerns were raised about the difficulties faced by the members of the profession in carrying out their professional duties in the context of institutions such as court registries, police stations, prisons, and land registries. Members of the profession have at times faced many obstacles in exercising their professional duties at police stations and prisons as well as other government institutions. Many instances are highlighted where lawyers are refused meaningful and confidential access to their clients who are in the custody of the Executive, i.e. the Police and prisons. Depriving members of the legal profession meaningful access to their clients at police stations and prisons not only affects the rights of lawyers but also has a serious impact on their clients and often leads to the violations of the rights of their clients. Depriving lawyers of meaningful access to their clients in custody often leads to the abuse of the process and puts the safety of such clients in jeopardy. It is my intention that there must be zero tolerance of ill treatment and the torture of persons in custody and deaths in custody. These must be addressed by the Bar. I have proposed to the CJ, the Attorney General (AG), and the Minister of Justice that the BASL meets them periodically to iron out issues which may arise from time to time. One of the main challenges faced by our profession is the increase in the number of lawyers entering the profession and the consequent challenges which exist. Juniors entering the profession are faced with many challenges and it is vital that the Bar be sensitive to the problems faced by the junior members of the profession. It is essential that the Bar seeks ways and means of enhancing the practical training of new entrants to the legal profession and also seeks to strengthen the training of apprentices. An urgent appraisal of the manner in which apprentices are trained must be considered. The Bar can no more be lax about the manner of training. It is of absolute importance that the apprenticeship period be more structured and not limited to the commencement and termination letters. Many juniors entering the Bar do not have the benefit of the guidance and the steadying hands of a senior. I have met junior members of the profession who had not had a first appearance in court for several weeks after being admitted to the Bar. In this context, I intend to work on the internship programme already commenced by the BASL for law students and to develop the mentorship programme under the Junior Bar Committee. The future of legal education in Sri Lanka is essential. Whilst the BASL welcomes the reforms already taking place, there is an urgent need to strengthen the link between the academic institutions providing legal education such as the universities, and the Bar, and the need for greater integration of those entering the profession after obtaining their law degrees. Similarly, the Sri Lanka Law College must be a vibrant institution which achieves its full potential. The BASL will try to strengthen the continued legal education programmes with the support of the regional Bar associations. Covid-19 brought with it many challenges to the legal profession. I remain committed to the welfare of lawyers. The creation of the Lawyers’ Trust – a benevolent fund for lawyers – is one of the measures I propose along the lines of similar funds created in the Bars in other countries. The promotion of good relations and co-operation between the Bar and the public, the legislature/the Parliament, and the Executive, are amongst the objectives of our Association. The presence of the Minister of Justice as well as the Secretary to the Ministry of Justice is important to the Bar. The Bar welcomes the enthusiasm of the Minister of Justice towards reform in many spheres and also towards addressing issues such as infrastructure and facilities in courthouses which are often woefully inadequate. The initiatives taken in respect of court automation by the Ministry and the fact that the Government has set apart unprecedented funds towards the administration of justice are praiseworthy. The BASL will continue to co-operate proactively with the Ministry of Justice. Not only the courthouses but the digitisation of other institutions such as the AG’s Department and the Police, and the exchange of information and data interoperability between institutions are essential for the speedy process of justice. Finally, I wish to state that we all share a love for this country. It is because of this love for this country that we believe that it must be one which safeguards the rights of its people including the rights of its weaker segments. It is by strengthening institutions and the rule of law and the rights of the people that this country can achieve its full potential. On behalf of the Bar, I remain committed to the values of freedom, equality, justice, fundamental human rights, and the independence of the judiciary which are aptly described in the Constitution as the intangible heritage of the people of Sri Lanka.   (The author is a President’s Counsel. He is the incumbent President of the BASL)  

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