Lawyers vs. Law

- Naomi Gunasekara
Journalist, BBC World Service

When Tirantha Walaliyadde, an Attorney-at-Law of the Supreme Court of Sri Lanka appeared on behalf of a man accused of murdering a High Court judge, lawyers hooted and protested against his appearance, paying little attention to international human rights standards that allows an accused a right to legal representation.

Lawyers considered the killing of Justice Sarath Ambepitiya (58), a judge known for issuing harsh judgments in a number of controversial cases, as an attack on the independence of the judiciary. In their attempts to preserve its independence they paid no attention to the fact that they acted in contravention of international and local legislation governing human rights.

Any person who is accused of committing a crime, no matter how grave the offence is, has a right to legal representation under the ‘Universal Declaration on Human Rights’ (UDHR)which the international community adopted over fifty years ago. In Sri Lanka, the Constitution and the code of conduct and ethics governing Attorneys-at-Law gives an accused a right to legal representation. However, following the killing of Justice Ambepitiya on November 19, 2004, the Bar Association of Sri Lanka urged lawyers to refrain from providing legal representation to Mohamed Niyas Nawfer alias Potta Nawfer, the first accused of the case.

Ikram Mohamed, President of the Bar Association of Sri Lanka, defended the lawyers’ action by saying that although every suspect has a right to retain a lawyer according to the Supreme Court regulations, there exists a need on the part of lawyers to take a personal stand on this case, since the murder of Judge Ambepitiya is an attack on the judiciary.

In the initial stages of the Magistrate’s inquiry initiated in December, the suspects did not have any legal representation. But when Mr Walaliyadde appeared on behalf of Mohamed Niyas Nawfer in mid January, lawyers’ protestations in open court resulted in the court being adjourned.

This is not the first instance where the Sri Lankan legal sector has opposed legal representation for an accused. In 1988, when Wijedasa Liyanaratchi, an Attorney-at-Law of the Supreme Court of Sri Lanka, died while in police custody, police officers who were suspected of his murder were denied access to legal representation. The Bar Association of Sri Lanka decided that its members should refrain from appearing for the officers unless certain conditions were fulfilled.

Ten years later in 1998, when a much publicised rape and murder case was brought to court, lawyers protested against legal representation for the accused and held a public demonstration condemning the lawyer who appeared for the accused.

Article 7 of the UDHR recognises equality before the law and states “all are equal before the law and are entitled without any discrimination to equal protection of the law.” According to Article 12 (1) of the Sri Lankan Constitution, “all persons are equal before the law and are entitled to the equal protection of the law.” Article 13 (3), stipulates that  ”any person charged with an offence shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trial by a competent court.”

These provisions recognise the right of a citizen, irrespective of the crime he/she committed or his/her or the victim’s standing in society, to be protected under the law.  Rule 5 of the Supreme Court Rules of Conduct also states that “an Attorney-at-Law may not refuse to act on behalf of a party or person in any matter or proceeding before any court, tribunal or other institution established for the administration of justice or in any professional matter at his or her professional fee.”

With such strong legal procedures and human rights considerations in place, it is indeed a matter of grave concern that Sri Lankan lawyers are choosing to ignore the basic tenants of law and human rights.