The Bar Association of Sri Lanka (BASL) recently concluded its election with Attorney at Law, Udaya Rohana de Silva emerging victorious. The Sunday Observer sat down with the newly elected President of BASL to seek his plans for ameliorating the Bar.
De Silva, a student of Ananda College, was subsequently called to the Bar in 1983. He has held office as Treasurer (2001-2003) and Secretary (2008-2010) of BASL, hence not a new face to the body.
The excerpts of the interview are as follows:
Q: Since your election, what is your view on the manner in which campaigns were carried out in the run up to the election?
A. It was one of the worst mudslinging campaigns that ever was in the history of the Bar Association election. The other contestant went beyond limits to tarnish my name, and then without any merits they made unnecessary allegations. They canvassed through Facebook. And a few lawyers even went to the extent of going around the country, merely to tarnish my reputation.
The post of President of the Bar Association is considered as a position that both, attracts power and responsibilities equally. If one wills to contest for such a position, the contestant should have the willingness, self-control as well as a disciplined team. I personally told each and everyone in my team who worked for my campaign, not to make any statements with regard to my opponents, irrespective of whether it was true or not. Their job was to assist my candidature and even today, if you investigate our approach to the election, it would be quite evident. My advice to them was merely to inform my contribution to the Bar as a lawyer and my contribution as the Treasurer (2001) and Secretary (2008) in the Bar Association and the Chairman of the Social and Welfare committee. During my tenure in these appointments I have contributed in many ways. All Bar Association activities which were mainly limited to Colombo was taken into other parts of the country. We organized various seminars and workshops for lawyers in the outstation. After 2010 although I was not an office bearer of the Bar Association I was a Bar Council Member and was also appointed as the Legal Aid Commissioner. Therefore, I had the opportunity to provide legal services.
Q: Why did it take so long for you to decide to contest for presidency?
A. In 2014 I was asked to come forward to contest as President of BASL, but with Justice Shirani Bandaranike’s removal I thought, the best person would be Upul Jayasuriya as he was more popular at that time. At that time Geoffrey Alagarathnam too came forward to contest and several senior lawyers advised him to step down, which he did. So I thought I should allow him to contest next. Thereafter, all my colleagues, seniors and juniors told me that it is the time for me to come forward and contest the position. I too thought the same.
I have been in the profession for over 34 years. I personally feel that the post of BASL Presidency is a 24 hour job. So you have to be vigilant and open to everybody, always. On that basis I came forward as I am in a position to dedicate the time and vigor in this capacity.
Q: The win was not by a vast majority, especially, if you consider the Colombo Bar as well as Island-wide, and take into account all registered lawyers. So do you think this election properly echoed the Bar’s intention?
A. I have my doubts and my concerns about it. Of the 13,000 odd eligible membership only three thousand voted. That means all the members’ consent was not represented. Therefore we have to investigate and find out why there was no full or at least even 80 percent voter turn up.
Q: Is it because the BASL has not done anything for the Bar or the community, or because of the mudslinging campaign that discouraged voters from voting?
A. I must mention that when the outgoing deputy president was made aware of the mudslinging campaign he issued a notice requesting contestants to refrain from such activities, although it was of no avail. So maybe, these election tactics would have put off some of the floating votes. It could also be attributed to the unexpected postponement of the elections. Whatever the reason, the fact remains that only 3,000 members voted. This is something that the Bar Association should take into account and find remedies.
Q: When you compare with previous BASL elections don’t you think that this time it was louder than it usually is and do you think a professional body such as the Bar Association should adopt such methods at elections? And do you think it should be regulated by introducing regulations ?
A. My personal view is that it is not proper. We are a professional body and we call ourselves members of a noble profession. So when we conduct an election we should bear in mind to set an example. But if you visit the social media platforms, mainly facebook everyone, not lawyers alone,, had access to what was going on in the campaign. Facebook is a very good and important platform so long as you use it in the proper manner. It is a platform for convenient communication and sharing of knowledge. But so far we have used it for very limited, unnecessary and unethical purposes. It has been clearly elicited during this election. This has been one of the dirtiest campaigns ever. So I agree that it was a very loud election, and I don’t mean loud in a good sense.
If you take a look at my campaign you would see the approach we have taken, and I am proud of that. Many young lawyers who worked for my victory came up with innovative ideas, new material and used the social media platforms in a good manner. In fact when I met with the President after the elections we discussed this and he shared how at the Presidential elections he faced a similar situation. And he too agreed that it needs to be looked into. Therefore I agree that there should be rules and regulations setting out proper ways of conducting the election. Of course they need to be discussed with the Bar Association and at its meetings with the Bar Council Members. And, upon their nod I will be introducing regulations for contestants to conduct themselves and their campaign at future elections.
Q: What would you want your biggest contribution to be, by the end of your tenure?
A. I have already shown my working capacity during my tenure as Bar Association Secretary. People still talk about it. But as its President my approach will be different. My first attention will be focused on the junior lawyers. At present we have many juniors coming into the profession. Last year there were 800 students that took oaths and I was told that there are around 1,200 more. Then what should our approach be. Should we curtail these numbers or accept them. After we accept we need to ensure that they last in the profession. So I have my plans to put into action, of course with the blessings of the Bar Council.
Proper guidelines should be set out in respect of various private institutions that offer LL.B qualifications. Can we be satisfied with the degree qualification that they obtain and what would be our evaluation on the same qualification and how can it be done.
Similarly, we cannot merely dismiss private universities. Normally, LLB students are only exempted from the entrance exam and they must sit all exams, primary, intermediate and final. At the same time there are government institutions that don’t even have proper lecturers, a classic example would be the Batticaloa University.
Q: But wouldn’t such actions in turn attract more students into Law College or to pursue a career in law?
A. No, the idea is to bring in quality people. We need to draw up ways and means to ensure that when students from Universities join the Law College that they have undergone a through and quality degree program. Evaluating their system is important.
I must confess that some of the Law College lectures are not up to standard. There are many instances where government universities would fall below the standard, but expect to be given recognition merely based on the fact that it is a government university. This should not be the case. All government and private universities should undergo periodical evaluations. We need to ensure that quality of the outcome is maintained. These issues must be taken up and discussed with stakeholders.
Q: What is your stance on the recent controversy surrounding the appointment of a high court judge?
A. The fact is, there was a vacancy and a need. The need of the hour was a judge fluent in carrying out the work in Tamil.
The request came from the Bar of Batticaloa to the former President of the Bar Association. To which the former Chief Justice too intervened and asked the BASL to assist. It is something that has already happened hence, I don’t wish to discuss it further, but what I want to emphasise here is that whatever the issue that crops up it’s important that parties get involved in open discussions.
Q: In your opinion is the Bar and the Bench free from political influence or is there more room for independence?
A. At present they are independent. It is imperative to show they are independent as well. So some people are concerned whether it is political or not and if so to what extent. But in this election it was portrayed that it was an election between a contestant representing the PA and the UNP. This clearly was not the case. Bar Association should be a non political body. By saying so is not enough but we must show through our actions that the Bench and the Bar are free from politics.
Q: You have been branded as a UPFA or a Mahinda supporter, what have you to say to this?
A. All I can say is that it is completely false. If it was the case by now I would have become a President’s Counsel. That is the classic example I can give. Because, if I am accused of being partisan, there has to be something that I should have gained in the process.
But others who contested were actively involved in politics while in Law College to the extent that they were elected officials of political parties as well as secured certain positions within government institutions. I do not have any affiliations to a political party. But I must admit that I have worked in my professional capacity. The main reason for this allegation is because I have taken up some cases of Basil Rajapaksa. I was merely executing my professional duties. Which I undertook for a professional fee and not because I was a PA member.
After I announced my candidature I informed him that I would no longer be able to appear on his behalf and revoked proxies. I have thus adopted a transparent method to show my impartiality and independence. Therefore I can say that, beyond reasonable doubt, I am non-political. But if someone comes to me for legal services I cannot reject it on the basis of their political party. I will now refrain from representing any litigation connected to any political party.
Q: How do you think the Bar Association ought to have acted in a situation similar to a summery dismissal of former Justice Shirani Bandaranayake?
A. The Bar Association should be vigilant and should ensure that proper guidelines are being followed. For example in that case proper guidelines were not followed.
That is why the Bar Association came forward and said it was wrong. As lawyers we were able to take an independent stance.
The Bar came forward united and vehemently condemned the procedure adopted by the then government.
My personal view too is that if there are allegations it should be proved following the proper procedure.
So that the Bar Association should be in a position to point out if and when any executive/parliamentary action has deviated from adopting the proper procedure.
Q: What are your suggestions to curtail law’s delays?
A. This was discussed with President Maithripala Sirisena as well. There is no point in going on saying there are delays when there are severe shortcomings in court and with manpower.
There aren’t enough stenographers. For example, to get a certified copy of a document would takes weeks. Earlier there was a system where when an order was given copies were provided to the counsels of both parties.
This enables us to immediately prepare for our petition or appeal in the event the party is not satisfied. These practical methods should be adopted.
We should introduce e-filing system immediately. This will save time. Similar steps could be taken in granting bail.
A bail application in the High Court should not be sent to the Magistrate’s Court. There are easier and shorter methods we could adopt.
Q: Do you think the current code of conduct for lawyers is strong enough that lawyers execute their duties towards the court and their client sufficiently?
A. No, we must change the code of ethics, and lawyers should be properly educated on it.
We should be able to report to the Supreme Court if a lawyer acts unethically or negligently.
One’s attire is very important, irrespective of gender.
The Judge should be able to say that the counsel will not be heard if they are not properly attired.
I found that this is in practice in most outstation courts. I have specifically advised my students on the importance of adhering to proper attire.
Pic by: Chaminda Niroshana