by Dilrukshi Handunnetti and Nirmala Kannangara
19 July 2009
This country is hitting an all time low in the area of civil liberties, and it is spilling over to every sphere. The media has been at the receiving end for so long that it is now taken for granted that the media fraternity — despite the so called media friendly heads of states being elected — would not be able to resist a media bashing spree. If they personally do not get involved, there always will be those who are too happy to become the state’s service providers.
And there is no need to overemphasise the fact that even a suspect of a rape incident does have the right to legal representation. It is the right of any party to a legal dispute and lawyers too possess not only a right to represent their clients, but also a duty to offer their service to clients of their choice.
But in today’s Sri Lanka, it seems that appearing for a newspaper like The Sunday Leader could have a negative impact on the legal practitioners and earn them the dubious label ‘traitor’ to boot. In this instance, five lawyers who appeared for The Sunday Leader in a recent case of contempt of court were quickly branded ‘traitors’ by the government’s very own Defence Ministry website.
Give serious consideration
In this backdrop, lawyers will have to seriously consider not the facts of the case but as to whether they should offer their services to those who may not appear acceptable to the state or certain other groups. This also means, one may have to reconsider appearing against powerful people like Defence Secretary, Gotabaya Rajapakse.
Five lawyers, namely Srinath Perera PC, S. Sumanthiran, Upul Jayasuriya, Viran Corea and Athula Ranagala watch the interests of Leader Publications in a contempt of court case.
That they appear against the powerful Defence Secretary may not be a popular route to take in the present circumstances, but the lawyers like all others are doing a job, practising their profession for a fee. Whether that should earn them a label of LTTE sympathisers should be something the Sri Lankan society itself should consider.
A legal practitioner who refused to be named told this newspaper when SLFP Parliamentarian Nalanda Ellawala was shot and killed in 1997 on his way to the Kachcheri to hand over local government nomination papers, there was a public outcry with regard to suspect Susantha Punchinilame having legal representation. “But Punchinilame’s right to representation could not be overlooked. If he was denied legal representation, that would have been a denial of a right. It is only one such example,” the practitioner explained.
If this trend persists, not only would clients be denied the services of a lawyer, lawyers too will be restricted in selecting who may ‘qualify’ to be represented by them and ‘should’ be able to obtain their services. As the Bar Association of Sri Lanka (BASL) statement (which is reproduced here in full) issued in the aftermath of the Defence website story states, there is not only a right to representation but also a duty on the part of the lawyers to appear for anyone, except in exceptional circumstances.
Not above the law
Defence Secretary Gotabaya Rajapakse, for all intents and purposes, though riding a wave of popularity post war for his style of spearheading the military effort and the privileged position of being the President’s brother, is essentially a public servant.
His position as secretary of a vital ministry should make him clearly open to public scrutiny and his title does not come with any special immunity. Other public servants sue and are sued. As such, opposing Rajapakse in a courtroom cannot render any lawyer a ‘traitor.’
The web post has pre judged the matter and may even qualify for contempt. Interestingly, despite BASL’s request that the story be removed from the website, it remains there, the images of lawyers still flashing prominently as of Friday.
Earlier too, on March 18, the same site published a similar story on a group of lawyers. As for the publication of photographs together with a story that vilifies individuals could be easily viewed as a provocative attempt.
A different website once carried photographs of a group of persons known for their advocacy of a negotiated political solution labelling them as ‘traitors.’ Some named in that story are now in exile and at least one — Lasantha Wickrematunge has been killed.
Hence, stories of this nature cannot be treated as being frivolous but publications that may harm the professional reputation of those named and also may place them at tremendous risk. Nobody could guarantee that these lawyers would not be open to increased threats of attacks if the story were viewed in a negative light by extreme forces.
‘Justice In Retreat’
It is a truism that lawyers who take up what are perceived as politically sensitive cases in Sri Lanka do tend to come under pressure. Besides, well known lawyer J. C. Weliamuna was attacked subsequent to which another lawyer came under attack. The country has an idea as to the sensitivity of the cases they handled then and continue to handle.
International Bar Association Human Rights Institute (IBAHRI) in its report titled Justice In Retreat documented the serious concerns at the publication of similar material by the same site titled “Who are the human rights violators?” which implied that certain lawyers representing LTTE suspects were themselves sympathetic to the LTTE or had terrorist connections.
It is important herein to record some remarks made by Associate Editor, Index On Censorship Magazine, Rohan Jayasekera sent to the Defence Ministry website in response to the said story. Jayasekera notes that “the website’s authors fully well know that false accusations like these can only incite the gangs of ultra nationalist thugs currently prowling the country to new acts of violence, including murder.”
It adds: “The basic human right to independent legal representation to all defendants — even those who defend powerful military leaders — is a fundamental principle of the Rule of Law and Justice.”
Public vilification of individuals and even institutions in the recent past has provoked physical attacks by vigilante groups in Sri Lanka and the recent history of the media industry was studded with many such incidents.
It is in this backdrop that the International Press Freedom Mission (IPFM) in an open letter to President Mahinda Rajapakse called upon to act on an eleven-point agenda to curb the current violence against the media.
This agenda calls for efforts to combat impunity through the creation of a Special Prosecutor’s Office for the investigation of crimes against the media with full autonomy to investigate attacks and assassinations of journalists, release J. C. Tissainayagam and his colleagues detained since March 2008, release the first results of the investigation into the murder of Lasantha Wickrematunge in 2009, allow full and unconditional access to IDP camps by the media, repeal the Press Council Act No. 5 of 1973 and to introduce legal reforms to create an enabling environment for a free and independent media including the transformation of existing state media into independent public service media.
In the present context, it does not come as a surprise that many an eminent lawyer when contacted did not wish to offer comments on the malicious story published on the Defence Ministry website. They know only too well the repercussions for expressing free opinion.
Let’s not forget the vital position that it is every citizen’s right to seek legal advice and be represented by competent persons. It cannot be a right denied to Leader Publications or any other. The prevailing situation calls for intervention by the highest in the land to restore sanity in a country that is fast losing its grip where the fundamental principle that all are equal before the law is a principle that is fast losing its significance.
Bar Association condemns web article
The Bar Association of Sri Lanka condemns the publication of an article in the Defence website in July 2009 under the heading “Traitors in black coats flocked together?” The article together with the heading create the impression that lawyers who appear against the Defence Secretary are traitors.
The Bar Association of Sri Lanka reiterates its clear position that every person has a legal right to be represented by a lawyer and that lawyers have a duty (save in exceptional circumstances) to appear for such person.
The Bar Association of Sri Lanka condemns any and all endeavours to prevent lawyers appearing for clients and / or clients having the services of lawyers.
The Bar Association of Sri Lanka will resist any pressure exerted to prevent persons retaining lawyers and/ or lawyers appearing for clients. The Bar Association of Sri Lanka requests that the article be removed from the website.
The Bar Association of Sri Lanka has already taken up this matter with His Excellency the President by letter dated March 18 regarding a previous publication of similar nature in the same website involving a group of lawyers.
The Bar Association of Sri Lanka is strongly committed to the rights of all persons of the country and will do its utmost to protect such rights.
International Bar Association alarmed
The International Bar Association Human Rights Institute (IBAHRI) is alarmed by the recent publication of the article “Traitors in black coats flocked together?” on the website of the Sri Lankan Ministry of Defence, Public Security, Law and Order. The article implies that lawyers defending The Sunday Leader newspaper in defamation and connected contempt of court case brought by the Ministry of Defence are ‘unpatriotic’ and ‘traitors of the nation.’ The article also includes photographs of the lawyers concerned.
In the context of the sensitivities surrounding the ending of the conflict with the LTTE and the threats currently being faced by lawyers taking politically sensitive cases, the IBAHRI considers this rhetoric to be deeply inappropriate and to seriously compromise the physical safety of the lawyers named.
The recently published IBAHRI report, Justice In Retreat, expressed serious concern at the publication of similar material by the Ministry of Defence in the article ‘Who are the human rights violators?’ which implies that certain named lawyers representing terrorism suspects are themselves connected with terrorist activity.
Lord Goodhart, who led the IBAHRI fact-finding mission to Sri Lanka, said, “The delegation was assured by the government officials it met with in Colombo that the ‘Who are the human rights violators’ article would be removed from the website. It is therefore extremely disappointing to see that not only has this not been done, but that the Ministry of Defence continues to publish articles which leave lawyers open to an increased threat of attack.”
“Governments are required by international law to protect and promote the independence of lawyers and to ensure that they are able to perform their professional functions without intimidation or harassment,” IBAHRI Co-Chair, said Justice Richard Goldstone. “IBAHRI urges the Sri Lankan Ministry of Defence to refrain from publishing any potentially inflammatory rhetoric against lawyers and to withdraw both ‘Who are the human rights violators?’ and ‘Traitors in black coats?’ articles immediately.”