Dharma, Justice and Dynamic Lawyering

By Dr. Jeevan Thiagarajah

The MCC lecture by Sangakkara was considered courageous and forthright for highlighting the corrections needed in Sri Lanka cricket. Similar occurrences would be rare among legal practitioners in this country where  violations of ethics need remedy. Affidavits before the Supreme Court, submission for rules to the Supreme Court, representations to the Chief Executive, His Lordship and now Her Lady the Chief justice, the Judicial Service Commission, interviews with children by a Justice designated by His Lordship the Chief Justice  and papers with another high Official form the basis of this commentary. Close on 17 years of observing and dealing with issues of access to justice of marginalized and vulnerable persons provides the background to observations. Our laws are underpinned by hallowed notions of Dharma and Justice which provides the heart and an opportunity to mingle and spiritualise with the law. Many a citizen would scoff at such a comment since what they experience is quite to the contrary. As an example Sri Lanka has a plethora of laws which protect animals, plants and flowers. Duly recognized recently in the Presidents Court  and in the Court of Appeal where rights of animals, fauna and flora have been given due place (our laws protect the eggs of animals, habitats and plants), notions found in many sacred scriptures. Judges speak of looking at all circumstances and weighing all options prior to determinations on law. Lawyers play a crucial role in this process.

Lawyers are given their licence by the Supreme Court and bound by Rules. In such a context misbehaviour  with premeditated intentions where Courts and laws are abused and Judges are at minimum insulted would be unthinkable. Regrettably it does occur among a very small coterie, seemingly connected to influential seniors, who act with absolute impunity. Their actions   are considered off limits for complaints and action and casts a shadow on the vast majority of lawyers conscious of ethics. A majority of lawyers work outside of government, with power to deprive citizens of their liberty, to impoverish and hold captive if ethics which bind them are flouted.

Dates are taken to delay, Court time is cavalierly abused, funds, particularly of children  are misappropriated or citizens framed with active connivance of lawyers who are meant to bring to the attention of Court clients who lie. Judges are complimented for their grace and consideration and the very same attorney thinks nothing of denigrating the same judge before another fellow judge in a parallel court and judges prevented from hearing a case. Directions given by his Lordship the Chief Justice are denied in open Court by a Presidents Counsel. Undertakings given in Chambers are denied and contemptuously flouted. The law is abused to such an extent the Justice Ministry is made to respond to questions in Parliament. Submissions to the Bar on some crimes go unheeded.

When children are hostage, the incentive for a parent to walk the talk is an unmistakable duty before the next generation looses confidence. While justice can be delayed it cannot be denied and its beholden on those who have the conviction and courage to step in where others fear to take responsibility. Indian Courts began to hear petitions direct from unfortunate citizens in the early 80’s to ensure Justice. Our Supreme Rules permitted post cards or letters from detainees to be accepted as petitions, due to representation from Sinhala youth in Boosa. Examples  of the Judiciary taking note direct of vulnerable circumstances where the voiceless needed to be heard. Such precedents should be rekindled.

With or without directives it is possible for  judges and lawyers to meet regularly at the district, review performance,  hurdles, complaints and methods of improving services. There is no bar to agree that children’s cases will be concluded within  3 months with  related files colour coded, (recommended two years back), submissions on petitions can be framed early and filed in writing reducing  court time or lawyers  made to bear costs for causing avoidable delays (both  done in Singapore), while block fees remain or  ethics violations for the period noted and sent for reference.

Ethical and dynamic lawyering  is the opposite of being accomplices in white collar crime. Becoming the third arm in the dispensation of justice is an honoured role for lawyers. A noble profession such as lawyering can do more to nurture a long treasured  heritage. Conversely civic consciousness will not lay mute with knowledge of crimes against the lives of innocent civilians, when lawyers fear to tread.

(Dr. Jeevan Thiagarajah is Executive Director of the Consortium

of Humanitarian Agencies.)

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