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Over 180 members of the Bar Association of Sri Lanka (BASL) have written to its President Kalinga Indatissa and its other office bearers calling upon them to ensure the right of Attorneys-at-Law to represent their clients effectively and to the best of their abilities without any hindrance.
The letter signed by 185 members of BASL expressing their continued concerns with regard to the Detention of Attorney Hejaaz Hizbullah, the Group said they are yet to receive a response to the letter they sent on 24 April, but have seen the letter of the management committee of the BASL dated 1 May (the BASL letter) said to be in response to various representations made to it by its membership.
The group of lawyers said that they wish to record their concern that the BASL has perceived some representations made by its membership as having been made to persuade the BASL to “influence” or “interfere” with any pending investigations or to colour present or future proceedings in a “partisan manner” and that as officers of the Court, they consider such attempts as being patently unlawful, unethical and reprehensible.
“As Attorneys-at-Law we are firmly committed in the need for the protection of due process rights of all persons and of protecting the professional rights of lawyers. It is for this very reason we are writing this letter. We are however concerned that two of the main matters raised by our letter are yet to be addressed by the BASL. They concern the failure of the CID to produce Hizbullah before a Magistrate and the failure of the CID to allow meaningful access to an Attorney-at-Law,” the letter said. The letter noted that these are extremely serious lapses and constitute an egregious failure on the part of the CID to follow the law.
They referred to Weerawansa vs. Attorney General, 2000 1 Sri LR 387 at 407 and 408, wherein the Supreme Court has clearly held that the law requires a person in respect of whom a Detention Order has been issued to be produced before a Magistrate promptly.
“Thus, admittedly, Hizbullah’s right to be produced before a Magistrate has been violated. As this is an important safeguard of the law upheld by the Supreme Court, we regard it paramount that the Bar Association of Sri Lanka intervenes to ensure adherence to this requirement of the law, more so when it concerns the denial of this right to an Attorney-at-Law.”
The lawyers also noted that Hizbullah has been denied meaningful access to a lawyer, which right is guaranteed by Section 15(2) of International Convention for the Protection of All Persons from Enforced Disappearance Act. No. 05 of 2018.
“The rightful access to a lawyer is a sine qua non of other important due process rights. Thus, it is essential for lawyers to be able to represent their client in a professional and competent manner and in this context to further ensure that the right of a lawyer to be able to practice his/her profession remains unimpeded.”
In light of these issues, the BASL members said they are troubled by several parts of the BASL letter, which indicate an inability or unwillingness on the part of the BASL to insist on due process guarantees for one of its members and if these are facts to the contrary, to keep them apprised of the same immediately.
“We regard it as essential that the BASL stands up for compliance with the black letter of the law. We regret any insinuation that such a demand constitutes interference with investigations. On the contrary, it is essential for the efficacy of investigations that they be conducted in accordance with the clear requirements of the law. In this case however, these requirements have been admittedly violated,” the letter said.
The lawyers reiterate the age-old norm and the law that “as professionals and officers of Court we must ensure that any accused, even those accused of the most heinous crime, are granted basic due process rights”. “This is not a favour or a luxury, it is the most basic requirement of the Rule of Law and one of the foundational principles of a civilised society. Thus, it is imperative that the BASL takes a decisive and principled stand on behalf of one of its members who has been deprived of such safeguards. Such a stand requires nothing more and nothing less than to insist on adherence to the express requirements of the Constitution as interpreted by the Supreme Court and to legislation.”
The Attorneys-at-Law said they look forward to decisive leadership from the BASL in this matter and would also appreciate a response to their letter.
The letter was sent to the BASL President, Vice President W.J. Shavindra Fernando, PC, Secretary Rajeev Amarasuriya and Assistant Secretary Vishwa de Livera Tennakoon.a
