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| Sunday, 9 January 2005 |
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Features |  |
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Judge Sarath Ambepitiya's Murder : The suspects' right to legal representation This is not the first time that this issue has emerged. It may be recalled that in 1988, when a member of the legal profession itself - Mr. Liyanaratchi died while in police custody and the alleged assassins were police officers, the suspect police officers had no access to legal representation. The question of the professional obligation on lawyers to appear or not to appear for the suspects or accused has been raised in the aftermath of the murder of High Court Judge - Sarath Ambepitiya. It was reported that lawyers refrained from appearing and the suspects were undefended. This is not the first time that this issue has emerged. It may be recalled that in 1988, when a member of the Legal Profession itself - Mr. Liyanaratchi died while in police custody and the alleged assassins were Police Officers, the suspect Police Officers had no access to legal representation. The entire Bar of Sri Lanka had been summoned for a meeting and a resolution was adopted by the Bar Association that no member of the Legal Profession should appear for any Police Officer in any Court or Tribunal until certain conditions were fulfilled. Ten years later in 1998, a similar situation arose when a member of the Bar appeared for the accused in the then famous Rita John Murder case. In this instance, lawyers attached to the Court in which the accused were produced, stood up in protest and in fact held a public demonstration condemning the lawyer who appeared for the accused. It has to be contended that in both the above instances, involving a collective protest, the members of the legal profession had seriously defaulted. They failed to reckon with certain fundamental principles and ethical considerations, which impose both a legal and moral duty on members of the profession towards the public seeking legal assistance. It must be remembered that, particularly in the legal and medical professions, there cannot be any compromise whatsoever in dispensing their services whenever and by whomsoever such services are solicited. Firstly, members of both disciplines are bound by an unwritten moral code of conduct, which perhaps in my view, had been reverently adhered to from time immemorial in all civilised society. Secondly, the moral codes in more recent times, have been codified, and in the case of the Legal Profession, specific provisions are embodied in documents, including the Constitution of the Republic of Sri Lanka. Article 12 (1) of the Sri Lanka Constitution states - "All persons are equal before the law and are entitled to the equal protection of the law." This is followed by Article 13 (3), which provides - "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." The above provisions enshrined in the Constitution of this country essentially recognise the right of a citizen, irrespective of the crime he committed or his or the victim's standing in society, to be protected under the law. In seeking such protection, as Article 13(3) of the Constitution provides, he shall be entitled to be represented by an Attorney-at-Law in any court or tribunal established for the administration of justice. In fact these provisions of the Constitution are supplemented by provisions in the Rules of Conduct governing the practice of the members of the Legal Profession. Rule 5 of the Supreme Court Rule of Conduct states - "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." However, Rule 5 above has a proviso to the effect that an Attorney-at-Law in special circumstances may on his own volition refuse to appear. The decision to appear or not to appear is undeniably his own. In making that decision he cannot, and should not be influenced by the dictates of others, and others would include members of his own profession. It must be remembered that his appearance for the client is essentially to ensure that justice prevails even in a most unpopular cause. He is duty bound as an 'Officer of Court' to assist Court in arriving at a correct decision. I have referred above to the provision of the Constitution of Sri Lanka and to the Supreme Court Rules of Conduct. A further, codified provision relating to a client's right to be represented in Court by an Attorney-at-Law is provided for under Section 41 of the Judicature Act No. 2 of 1978, which Section states thus - "Every Attorney-at-Law shall be entitled to assist and advise clients and to appear and plead or act in Court or other institution established by law for the administration of justice and every person who is a party to or has or claims to have the right to be heard in any proceeding in any such Court or other such institution shall be entitled to be represented by an Attorney-at-Law". Here again, one must appreciate the unassailable right vested by law in the lawyer to appear on behalf of any client of his choice before any Court of Law. Further, as I stated above, leave alone the moral principle, any person has a legally recognised right to be represented by an Attorney-at-Law in any Court or Tribunal and reciprocally, an Attorney-at-Law is bound to represent him in such Court or Tribunal if called upon to do so. He cannot, nor should he be dissuaded impliedly or otherwise in the performance of such a duty. In the above context it would be interesting and appropriate to look into the Objects under the Constitution of the Bar Association of Sri Lanka. Clause 2.1 (f) of the said Constitution states thus - "the promotion, observance and the protection of the right of access to Courts and of legal reprentation before administrative and investigating authorities," Apart from the codified provisions referred to above, there is a duty cast on members of the Bar Association not to deny any member of the public his right of legal representation. In any event they cannot be swayed by sentiment, impetuosity or impulse. - J.K. Liyanasuriya |
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