“…(This) is a jurisdiction which undoubtedly belongs to us but
which we will most sparingly exercise: more particularly as we
ourselves have an interest in the matter. Let me say at once that we
will never use this jurisdiction as a means to uphold our own dignity.
That must rest on surer foundations. Nor will we use it to suppress
those who speak against us. We do not fear criticism not do we resent
it. For there is something far more important at stake. It is no less
than the freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the press
or over the broadcast, to make fair comment, even outspoken comment on
matters of public interest. Those who comment can deal faithfully with
all that is done in a court of justice. They can say we are mistaken
and our decisions erroneous, whether they are subject to appeal or
not. All we ask is that those who criticise us will remember that,
from the nature or our office, we cannot reply to those criticisms. We
cannot enter into public controversy, still less political
controversy. We must rely on our conduct itself to be its
vindication.”
Exposed as we are to the winds of criticism, nothing which is said by
this person of that, will deter us from doing what we believe is
right;…” Lord Denning, Regina vs Commissioner of Police of
the Metropolis ex. parte Blackburn,2 W.L.R. 1204
What is even more disturbing about the statement of the Bar
Association is the following statement.
“… The Bar Association of Sri Lanka notes with concern the undue
and unwarranted attacks on the law enforcement authorities, the
Attorney General’s Department and now the judiciary….”
What are these undue and unwarranted attacks? An association like the
Bar Association should specify what it considers as the undue and
unwarranted attacks on the law enforcement authorities, and the
Attorney General’s Department. May we ask, as to whether is it undue
and unwarranted to state that the law enforcement authorities, namely
the police have failed in their primary function of enforcement of the
law in Sri Lanka?
Is it an unwarranted criticism that as the prosecutor against crime
the Attorney General has failed to impartially and competently to
prosecute all the crimes that are taking place in Sri Lanka? Is it an
undue and unwarranted criticism to say that the entire system of
administration of justice is beset with undue and unwarranted delays
and such delays have threatened the very prevalence of the rule of law
in Sri Lanka?
None of these criticisms are new. One could refer to the most recent
statement of the UN Special Rapporteur for the Independence of judges
and lawyers
, to see a litany of a long list of the most fundamental defects of
the system of administration of justice in Sri Lanka. One could also
go through some of the previous statements of the Bar Association
itself, which was honest enough to admit the fundamental problems
existing within the system of administration of justice in Sri Lanka.
There are also nearly twenty (20) Communications to the United Nations
Human Rights Committee (UNHRC), where the Committee has expressed its
views stating large number of violations of civil and political rights
committed by the Government of Sri Lanka on matters such as failures
to investigate serious crimes such as murder, the Attorney General
interfering to stop inquiries into murder by issuing letters to the
inquiring Magistrates not to proceed with such inquiries, abuse of
contempt of court proceedings violating the international norms
relating to such matters, undue delay in conduct of trials, dismissal
of judges without following the due process, and numerous instances
where torture victims were denied redress. In the latest view
expressed by the UNHRC - Amarasignhe Arachchige David Amarasignhe,
Communication No. 2209/2012, where a man who was brutally tortured and
massacred was denied of a proper inquiry into his death by the
intervention of the Attorney General himself.
As for our part, the Asian Human Rights Commission in a recently
published book titled “Torture as an Entrenched part of Cruel,
Inhuman and Degrading Legal Systems” (300 pages), have narrated in
detail the manner in which Sri Lanka’s system of administration of
justice has fallen into a state, where fundamental flaws have emerged
which obstructs the people from obtaining justice.
The Bar Association should be aware of the enormous obstacles faced by
the lawyers throughout the country in the practice of their profession
without fear or favour. It is well aware of the recent attack on a
lawyer where he was abducted, severely beaten, threatened to be killed
at gunpoint, threatened with sexual abuse, and robbed of his
possessions; the lawyer later complained that the Ragama police had
deliberately sabotaged the inquiry. The Bar Association itself not
long ago, protested when an attempt was made by the Ministry of
Justice through a Gazette Notification to limit the access for lawyers
to their clients in custody, stipulating that they could have such
access only after interrogations are done.
The Courts and the lawyers exist only for the purpose of ensuring that
the people in the country - irrespective of their status, gender, race
and language - could obtain justice. It is only the blind who could
deny that the actual realisation of that basic aim is far from a
reality in Sri Lanka.
When criticisms are made for whatever purpose they may be, the wise
course of to follow is to listen carefully and utilise every
opportunity to achieve radical reforms that are essential, if the rule
of law and the recourse to justice is not to become an illusion for
the people who seek such justice.
The legal profession is a noble profession to the extent that the
lawyers are willing and capable of leading the fight for justice. If
we lose a fighting Bar, we virtually lose the battle for justice.
It is far better to look in the mirror and recognise whatever that is
ugly that may have begun to emerge in ones’ own appearance. Such
honesty and frankness does no harm. However, to hypocritically evade
criticism, is to let down the legal profession, the independence of
the judiciary and the freedom for the people to live without fear and
suspicion.
AHRC-
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