Sri Lankan Parliamentarians cannot be politicians and practicing lawyers

By Shenali D Waduge

For the good governance mantra to have any effect it must be practiced in its truest form. Sri Lanka’s Parliament has an abundance of qualified lawyers both in the Opposition and Government and a majority of them are practicing law. No politician should take up positions and professions that give rise to conflict of interest. As ‘learned’ men, standing for elections they should have a conscience to know the adverse effects and the conflict of interest arising when they function as a politician and a lawyer. Principally they should not function as both.

Questions to the Legal Fraternity

While it is the right for anyone to stand for office did the 11,000 attorneys of the Sri Lanka Bar Association not think about the likely conflict of interest in electing a politician to be its head?

The previous President was in fact a politician. Does such a President put the interests of the Public first or does he take his client’s interest for which he charges a fee as priority. In the case of the past President, he appeared as counsel for a leading corporate chairman who was accused of defrauding money of over 3000 members of the public robbing them of over Rs26billion resulting in over 20 of them committing suicide. In appearing as legal counsel for the alleged fraudster did he not compromise his duty to the State and the general public for which not only does he get a salary paid for by the taxpayer but numerous perks and privileges that money cannot buy. In addition, being a politician he was privy to information that was not available to others as well as the ability to make use of the parliamentary privileges and thus be immune from being questioned in Parliament. http://www.lankahoru.com/ScOrders.htm

According to the Parliament, Parliamentary Privileges act declares that “No member shall be liable to any civil or criminal proceedings, arrest, imprisonment, or damages by reason of anything which he may have said in Parliament or by reason of any matter or thing which he may have brought before Parliament by petition, bill, resolution, motion or otherwise”

http://www.parliament.lk/about_us/powers_privileges.pdf

The then President of the Bar Association used that parliamentary privilege by challenging a decision taken by the Speaker and filing a case by the Bar Association of Sri Lanka against the Parliamentary Select Committee that probed the impeachment against Chief Justice Bandaranaike.  http://srilankans.com.au/sri-lankan-news/ada-derana-news/parliamentary-privileges-issue-raised-over-petition-against-psc?page=166 / http://www.colombopage.com/archive_12B/Dec05_1354688043JR.php

The past President of the Bar Association is coincidentally now the Minister of Justice in the interim government formed after Sri Lanka elected President Sirisena in January 2015.

The present Bar Association President also a practising lawyer has now been appointed head of a key state institute and the conflict of interest that may arise in this area needs to also be highlighted.

Miscarriage of justice by the Judiciary

We agree that the judiciary is plagued with a plethora of issues. None of them can be eliminated unless the legal fraternity themselves rise against these malpractices. We did not see any such objections when the results of the law college entrance came and alleged malpractice was highlighted giving an unprecedented number of a minority race to secure the top slots gaining over 100 seats to enter the law college. Was it because the Justice was under a Minister belonging to that minority? Moreover there was stoic silence from the then Bar Association President and the plausible reason for this we may conclude to be was the likely loss of votes from this minority community to him at Parliamentary elections.

Revelations by 2 former judges at the Annual General Meeting of the Judicial Service Association on 22 December 2012 only confirmed that all is not fine in the annals of the Judiciary. Sending an innocent man to prison just because the judge does not like the lawyer appearing for him is definitely a miscarriage of justice to which the organs of the legal system kept quiet.

When the animal welfare bill and anti-conversion bills remain in embryo we can but wonder whether it is because of the religious whims of Ministers holding the portfolio.

Lessons from other nations

• In Italy Silvio Berlusconi’s attorneys were all members of its Parliament. How ethical is it for defense lawyers/Parliamentarians to make laws that protect their Premier who is also their client?

• Philippines – Section 14, Article VI says “No Senator or Member of the House of Representatives may personally appear as a counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies”. Conflict of interest can arise when those holding portfolios have access to information not privy to others.
• The Philippine example is what Sri Lanka must now follow.

Ideally as learned men especially in a profession such as law, we expect lawyers to function with higher moral standing and not wait for the general public to bring up matters that may give rise to instances of conflict of interest. In the absence of lawyers realizing the conflict of interest we feel it is only correct to bring these important areas to public attention so that they may also voice their views as well. It stands against every norm of democracy to appear as a politician and a practicing lawyer in view of the highly politicized environment that prevails.

Thus, the best way to avoid having to wear too many hats conflicting with one’s expected duty as a Parliamentarian is to refrain from appearing for legal cases (for a fee or not).