A shattered rule of law and the failure of the BASL

The series of events which are naked attacks on the rule of law and the independence of the judiciary in the recent past are well recorded.  These events culminated in the unprecedented action of the Judicial Service Commission (JSC) chaired by the Chief Justice and constituted of two other Supreme Court Judges releasing a statement to the public through the Secretary to the commission.  In whatever way one looks at the statement, it is the expression of the displeasure of the JSC on the interference of the executive in the discharge of its constitutional functions.  There is no doubt that this unprecedented move stemmed from the unprecedented happenings of the recent past.

Lawyers are the persons who will be most affected by any outside interference in the enforcement of rule of law and the independence of the judiciary. Lawyers could perform their professional duties with dignity and self respect only under a system where the rule of law and independence of the judiciary is respected.  In a legal system where the rule of law and independence of the judiciary is trammeled as far as the professional duties are concerned they cease to function as lawyers and become mere ‘brokers’ in the system.  Therefore, the preservation of the rule of law and independence of the judiciary goes to the heart and core of the profession.  No member of the legal profession with a conscience can compromise in any way with these developments.

BASL & Rule of Law

The Bar Association of Sri Lanka (BASL) as the professional body of the lawyers has a paramount duty to safeguard Rule of Law and independence of the judiciary against the attacks on the rule of law and to protect and promote the rule of law and independence of the judiciary.

In the midst of the serious and alarming events that has come to pass, it is saddening to see that the BASL has failed to act positively and meaningfully against these events that has dealt unprecedented blows on the rule of law and the independence of the judiciary.  It has to be said that this has being the case not only under the present leadership of the BASL but for a considerable period of time.  The failure to act during  Chief Justice Sarath N Silva’s tenure in office is a glaring instance.

It is not that the BASL did not do anything, but that the BASL has failed to do anything more than issuing statements condemning these attacks and expressing its concern.

A systematic pattern

These forms of protest would have even sufficed if these incidents were isolated incidents which are deviations from the norm.

But unfortunately it is not so and these series of events has shown a pattern, a system and repetition.  It has reached a stage where the BASL is obliged to go beyond the mere issuing of statements and going into discussions with the authorities concerned.

The time has come for the BASL to go to the people and educate them, enlighten them and get their backing for a campaign to force those responsible for the present state of affairs to refrain from such actions.

It is the people who are souverign and it is for the BASL to take these serious developments to them.  There is no issue in discussing these matters with the authorities concerned.  The view of the BASL seems to be that there should be a compromise between the executive and the judiciary. What is meant by this ‘compromise’ is not clear.  The only compromise should be that the executive and the legislature should respect the Rule of Law and independence of the judiciary as proclaimed in the constitution and upheld in the constitution.  There cannot be any other compromise short of this.

A suggestion made at the meeting of the Bar Council, that the BASL should go to the people to explain and enlighten the people on these issues was not even considered. 

Learning from FUTA

The very successful manner in which the university teachers under the FUTA, was able to take their cause to the people and to muster the people behind their cause is an example worth emulating.  FUTA was able to carry on their campaign in taking the crisis of education to the people with much force in a dignified and enlightened manner worthy of academics.  Now almost every household in Sri Lanka is aware of the crisis of education. 

Every household should be made aware of the crisis in administration of justice which is more serious and goes to the very fundamental question of upholding the constitution and Democracy. 

Democracy cannot stand minus rule of law and independence of the judiciary.

Lal Wijenayake, an attorney at law, currently serves as a Convenor of the rights group, Lawyers for Democracy (LfD).