Law College, legal profession, Bar Association and judicial system

by Sarath Wijesinghe

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The earliest people who could be described as “Lawyers” were orators of Ancient Etens. Initially individuals were supposed to plead individual cases and subsequently through friends.

The legal profession has been one of the most honourable professions on the planet. Law enacted in 204BC Roman Advocates were barred from taking fees. Emperor Claudius abolished the ban on fees.

Lawyers and legal profession was then loved by the people. Today the situation has changed.

Ignorance, no defence

We are governed mainly by English, Roman Dutch and Personal Laws, in addition to International, Regional Laws and Conventions. Ignorance of law is no defence. Legal Aid plays a main role in this lacuna. Citizens are supposed to know the law and the legal profession has an important role in the Civil Society to educate and direct the citizens on the knowledge of law.

It is the responsibility of the lawyer to give guidance and advice to citizens. By section 17 of the Charter of 1833 the Supreme Court was empowered to admit and enrol Advocates and Proctors. By the Act No 44 of 1973 the lawyers were renamed Attorneys-at-Law following the USA model.

Sri Lanka Law College was established in 1873 and the Supreme Court under section 16 of the Courts Ordinance was empowered to admit and enrol Advocates and Proctors to the profession.

Responsibility of legal education and management of Law College including appointment of the principal was vested with the Council of Legal Education established in 1873.

The only way to be a lawyer in Sri Lanka is through the Law College and the only professional association for lawyers with disciplinary powers is the Bar Association and all the Judges are lawyers educated and enrolled in the Supreme Court consisting of senior lawyers.

This indicates how closely integrated and interwoven these institutions and professions with each other and the public.

Attorney General is the leader of the Official Bar and the President of the Bar Association is the leader of the unofficial Bar with enormous powers and responsibilities written in article 2:1 of the BASL and unwritten and accepted convention and powers locally and internally which includes law reforms, access to law, and Administration of Justice.

Birthplace

Attorneys-at-Lw course consist of three year lectures and training under a senior lawyer. The majority of lawyers in Sri Lanka depend on the practice in a court of law on a chosen area of law in a selected jurisdiction.

This system is not properly organised though it is the duty of an organised professional body to help newcomers produced in bulk which has led to over flooding the profession. In the United Kingdom which is the birth place of our profession, things are very well organised and planned to cater the members of the legal profession.

They change with the changing world and we do not. Our law college syllabus is hardly changed since inception. It is time for drastic changes in legal education, practice and the entire out look and fabric of legal and judicial system.

The Law Commission too must work hand in hand with the Law College and the BASL to achieve these goals. In the United Kingdom legal education is geared to modern developments needs and changes. No lawyer can find employment without a sound knowledge of E-Com and full and comprehensive knowledge of law in UK and Europe.

UK is the best country for a lawyer who is placed in the highest professional bracket in social and public life, whose services are wanted and used by the State, international organisations, and companies.

Based on the training by the law society and the Bar Council private sector, regionally, internationally and global organisations offered ample employment opportunities for lawyers. Needless to say, that a sound knowledge of English is necessary to be a successful lawyer.

A lawyer is and should be trained to do any and many things - not necessarily appearing before a court of law alone. In the United Kingdom legal aid system is the best in the world, where billions of sterling pounds are spent to offer free and quality service to the needy litigants with less income for justice.

The countrywide legal aid schemes are managed with the help of the legal profession in a well organised network of Solicitors and Barristers. Sri Lankan/ Asian and Ethnic lawyers are the most benefited from this scheme where it pays the lawyer adequately. Business/ E-com/ International Trade/Tourism are booming in the UK and the services of lawyers who are properly trained are desperately needed to the country.

Solicitor must adhere to strict disciplinary procedure and stringent rules to be engaged in practice. In order to obtain a practising certificate to be engaged in the legal profession for one year will cost a lawyer from Euro 1000.00 onwards with minimum 16 hours professional development study hours and insurance cover of around Euro 10,000.00 per year.

I was fortunate to be a Senior Solicitor in England and Wales with a lucrative practice drawing over a few hundred thousand pounds per year until I gave up my practice at a big financial loss in order to serve my country and our President.

Experience and knowledge

My experience and standing in the capacity of the Secretary Bar Association and Administrator of Legal Aid Commission in Sri Lanka for two years helped me immensely in serving my “Second Home” especially helping as a part of the legal aid team during my practice in the United Kingdom.

In Sri Lanka I had to manage the entire countrywide legal aid scheme for two years only with a meagre grant of Rs 150,000.00 which experience and knowledge helped me to serve the British Society equally well.

If our lawyers are properly trained and we maintain good relations with the Law Society in the United Kingdom a large number of our professionals will have employment opportunities in the UK and Europe as many new avenues are opened such as the scheme to converts foreign lawyers and HSMP which is a passport for a Sri Lankan lawyer to start a practice or find employment in the United Kingdom and Europe.

There should be reciprocity of professional acceptance of organisations in both countries as our relations with Law Society have strained due to various tactless steps taken by us previously.

Conversion

Conversion to be a Solicitor in England is easier for an Indian lawyer with limited restrictions when Sri Lankan lawyer had to go through a rigorous procedure. This is not fair and has not been the case before.

Previously a Sri Lankan lawyer could qualify as a Solicitor with least resistance. It is time for the Bar Association and the Law College to renegotiate this procedure as a matter of urgency as UK is opening doors for foreign lawyers due to the shortage of Solicitors to cater to their needs. On the other hand Solicitors are recognised in most commonwealth and civil law countries with ample job opportunities.

The news that “lawyers from Kandy complains of failure of the court to take action against unprofessional conduct of another group of lawyers is disturbing and alarming. Kandy lawyers have petitioned Asian Human Rights Commission in Hong Kong, against few lawyers staying in front of the main gate, looking for clients when Article 2:2 (2) of the BASL constitution gives power to the association “to maintain standards of professional misconduct by the promotion of honourable practice, prevention of malpractices and other conduct of unbecoming of an attorney at law”.

Then why do lawyers go so far when the remedy is within sight when the solution is with the branch association and BASL. I am proud of and confidently state that current energetic President BASL Mr W.Dayaratna who is a senior lawyer with a lucrative practice who has been one time my assistant will understand the difficulties and problems of and these lawyers to bring about a solution as he himself has come up to this important and prestigious position in the hard way.

I offered and continue to offer my help and cooperation in any way to help my professional brethrens within my capacity using my experience and knowledge acquired. Though my ambition too was to lead the Bar and serve the Nation and professionals better, it was unfortunately prevented due to reasons most of my colleagues are aware of..

Lawyers have more important and greater role to play in matters of public importance and interest. According to Article 2:1 (E) : 1, we have a duty to promote, observe and protect human rights and liberties including the rights and access to the Courts”.

This shows how close and interconnected an interwoven the Law College, BASL, Legal Profession and Judicial system as all the judges are selected from the Bar, though in the UK some magistrates and Tribunal presidents and Immigration Judges are laymen or academics.

In this metamorphosis of the legal system all stages must maintain the highest standards and civic duties though it is a moot point whether they do maintain the standards and civic duties.

Bar Association which is the only professional body for lawyers have not been a productive and a busy place living up to the expected standards and efficiency with innovativeness.

Though it is stated that it should promote and protect the welfare and rights and privileges of the Bar, sadly it does not act so which I may be able to establish with even personal experience of many members. I think it is time for the new President to inject new blood and act fast to meet the responsibilities and requirements to the profession and to the country as a whole.

Laws delays, Judicial system, Excessive cost of litigation, Due Process and Rule of Law are areas that the new BASL has to face and address to as all these were areas neglected previously by this most powerful body- a vibrant and a leading member of the Organisational of Professionals Organisation.

We remember with pleasant memories and great respect the services rendered to the organisation and the country by the first President H.W.Jayawardhana Q.C. and Mr Nimal Senanayaka P.C. ( with whom I served the country as the Secretary BASL) and few other able Presidents in promotion of justice and foreplay using the BASL as a vehicle.

English, a prerequisite

Lawyer must be learned, knowledgeable and confident. In the new world when the boarders are being disintegrated due to fast economic financial and social developments - mainly on E-com and international trade, laws must keep the pace with the developments, knowledge on E-Com.

English as it is a prerequisite to maintain the world trends and developments. I read with dismay some lawyers demonstrating in Colombo on the issue of English at Law College.

In my view though the way it was introduced is obviously unfair, it is a need of the hour to pave the way for English and E-com in the interest of the prosperity of the Nation and keep pace with world developments and trends. On the other hand there should not and need not be a compulsion for English.

Today the trend is completely changed for good- for good English and new E-com developments. Many want to learn and practise English and E-Com developments out of sheer necessity, not by compulsion.

We were under the British over 150 years and 60 more years have passed after independence. Despite all attempts to learn/teach English today only 5 per cent of the population has a sound and a working knowledge of English.

But the good news is that there is a craze and a need to learn English out of sheer need and necessity and not by compulsion. My father-in-law has been one of the leading businessmen in Pettah, who could speak Tamil as fluent as any average Tamil speaking person.

He and the family had to learn Tamil it due to sheer necessity to prosper in business. But there is no other way but to pave the way for our people to learn English definitely not by compulsion but by paving the way to improve the world language in our own interest.

When I was the Chairman CAA Pettah Business community who are predominately Tamil prefer to speak in Sinhala as they are more conversant in Sinhala than that of English. They learnt Sinhala out of sheer necessity.

Drastic changes necessary

We need urgent and drastic changes to meet the needs and demands Legal educational systems be broad based for current needs.

President Mahinda Rajapaksa has very early stages identified E-Com and English to give special attention. His energetic Secretary is carrying the plans of setting up “NanaSalas” - computer centres countrywide. I understand that over 600 centres are established and steps are taken to improve the E-Com knowledge of the entire population.

From 5 per cent the progress today is 20 per cent which is growing day by day. Presidential Advisor Sunimal Fernando has taken steps to improve English knowledge in the country via a number of projects launched and led by the Presidential Secretariat.

English must be used as a servant and as a passport for prosperity and not as a social symbol. It is most needed for a common law lawyer depends on global, international law and company practice.

Even within Sri Lanka avenues are plenty in commercial law. In the areas of Regional, Civil and International litigation outside Sri Lankan are mostly consulted. This is a sad and sorry state of affairs. Why can’t we groom and produce our own lawyers to attend the matters in our jurisdiction.

Prevent law’s delays

A lawyer in any jurisdiction is powerful. Bill Clinton, Tony Blair, President Mahinda Rajapaksa, Ranil Wckremesinghe - the able leader of the Opposition - are all Lawyers.

Law College, Legal Profession, Bar Association and Judicial system are parts of “Judicial Metamorphosis” in our country.

People crave for justice and mercy from Judiciary hoping they receive real justice without delay and if and when it is excessively delayed it is no justice. BASL can play a major role in preventing laws delays by researching and studying the fine systems in the UK where laws delays are almost minimal.

This is the jurisdiction where our system originated and developed without being stagnated as ours. Justice should also seem to be done and transparent. Person before the Judge seeking justice should feel that justice is justly and impartially given without fear favour or personnel vendettas. Judges are not super humans as they are one of us in our fraternity who will Judge us only for a short period.

It is time for the Bar Association of Sri Lanka and the Organisation of Professionals to meet the burning desire and demand of the ordinary citizen for Justice and Fair Play- protection preservation and maintenance of individual and collective Human Rights.

“Sarath Wijesinghe LL.M London (International Law) - Solicitor - Attorney-at-Law is a past Secretary of the Bar Association and past Administrator Legal Aid Commission”.