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The Bar Association Of Sri Lanka And The Rule Of Law

Sep 10, 2011 4:18:47 PM - thesundayleader.lk

By
Tirantha
Walaliyadde
President’s Counsel

“When men run out of words, they reach for their swords” -  Oliver Cromwell

Supreme Court of Sri Lanka

I came across this little tale one day: there was once a country which was inhabited by two tribes of asses. One tribe wore blue coats and the other wore coats of all colours other than blue.
The coats of the blue asses were always trim and proper and well groomed and they were fat and well fed and contented whereas the other asses were always hungry, unkempt, and lived out lives of misery and poverty, and whenever they felt like it the blue coated asses used to beat the other asses with swords and clubs and often corral them. Whatever complaint the ragged asses made were also handled by the blue coated asses and they never got off the ground. So there was much unhappiness in the camp of the ragged asses while the camp of the blue coated asses rang with song and dance and flowed with wine. Things were going from bad to worse when one day a young lawyer came to town and seeing the troubled looks of the ragged asses he sat down on a box in the town square and called upon the ragged asses to state their woes. So, one by one with great hesitation and trepidation the ragged asses told the young lawyer their troubles.  The young lawyer faithfully committed the complaints to paper and the pile of papers grew and grew and grew. Suddenly there was a slight breeze that disturbed the piles of papers and scattered them round the town square. The breeze grew into a wind and took the papers even further away and then the wind grew into a gale and then a hurricane and the papers that the lawyer had painstakingly prepared were scattered all over the country. Many other ragged asses started reading the contents and began adding more of their own and the country was engulfed with these pieces of paper. And then… what happened? How can we say since it is agreed that we are not asses but men….
I read this little story in one of Frank Yerby’s novels on the French Revolution.
When tracing back along the mechanism for the administration of justice one arrives at the law enforcement agencies tab. Law enforcement concerns those departments of the Executive as are charged with the investigation, apprehension and prosecution of persons alleged to be involved in criminal activities. As such, the powers of law enforcement are concentrated in the Executive thereby giving it an overall coercive control of the system through its law enforcement agencies- subject to certain checks and balances imposed by procedural laws. The law enforcements agencies whilst being part of the Executive are also subject to its control. Cause for concern arises when this control becomes malignant and law enforcement becomes selective and ceases to apply equally to all, circumventing the Rule of Law.
This is not an article on the Rule of Law but on the absence of it. Democracy, shortly stated, is the entrustment of their sovereignty by the people to elected representatives and includes entrustment of the Rule of Law. If the Rule of Law is erased from the equation, that society takes a giant leap backwards into something akin to Feudalism of the Middle Ages There is no room for the Rule of Law in a Feudalist system just as there is no room for Feudalism in a Democratic system.
The non adherence to the Rule of Law in a purported democracy implies an inherent or acquired instability in its political environment; and the body politic, instead of showing an apathetic capitulation needs to give urgent address to it and prevent its further deterioration.  To this end, when grave violence is done to the Rule of Law, the Bar Association, which by reason of the commitment of its membership to uphold and defend the Constitution, must intervene and convert such issues into public interest litigation with all its implications, and, for this specific, the membership of the Bar Association must be as one, irrespective of political, ethnic, religious or other differences.
Invasive political cultures like computer viruses go unnoticed at entry and unless due vigilance is exercised they spread slowly within the system until it is too late to extract and the system crashes because the system has been taken. The Bar Association, whatever its troubles may have been, has maintained its political independence and it is necessary to identify and prevent any attempt by any agency to introduce any political virus into its system. A threat of political compromise to the Chair itself is an act of rude contempt against the very Constitution of the Bar Association which demands independence as one of its objects.
The Bar Association is not a cosmetic Organization limited in its activities to welfare and Resolutions, but a dynamic and a potentially coercive entity subject to the dictates of none save its own. As such, the time has come now to resist all political maneuvers calculated to finally annihilate its credibility, and like the Phoenix, rise again from the ashes and rebuild its image as an independent and powerful body that will not tolerate any attempt at the politicization of itself or of the Rule of Law.
Manipulations of law enforcement may seem fun and games to their perpetrators with tactical victories scored over adversaries but with every breach of the Rule of Law the seeds of discontent are sown within the community and the stature and stability of the nation take a step backwards. The nation is not the land mass but its people and as such is a living entity, and the Rule of Law is the collective moral consciousness of the people which the democratic ideal seeks to achieve. Irresponsible tampering with this ideal makes those responsible for it accountable to the people and there will come a day when the people can step backwards no more.
On that day, the next chapter to the chapter at the beginning of this article will be written, since it is agreed that the people are not asses but men.

About The Author
Tirantha Walaliyadde, President’s Counsel, will tender his nominations at the next Bar Association Elections for the post of President. He informed us that his candidature is based on his non allegiance to any political party and his commitment to ensure that the Bar Association is free of any political encroachment into its decision making protocol  and his intention to muster the full force of the Bar Association to re affirm the Rule of Law.