Rita John's murder - the suspects and the bar
By J. K. Liyanasuriya (Attorney-at-Law)

The recent murder of Mrs. Rita John, as is usual in such.... crimes, had strirred a wide public sympathy towards the innocent victim of the crime. This is the natural phenomenon in the given circumstances, wherein the victim is shrouded with sympathetic concern by the public at large, while the perpetrators of the crime are unreservedly condemned.

So it had been in the present case, when sentiment ran high, not only in the neighbourhood of Mattakkuliya, where the crime was committed, but perhaps in the entire country and in certain instances, the reactions of the individual groups were understandably highly emotional. Effigies of the suspected criminals were publicly exhibited and a demonstration of a public execution of the suspects was enacted.

In such a highly emotional atmosphere, it is also understandable that some members of the legal profession, as was reported in the media, thought it fit to hold a public demonstration condemning the Attorney-at-Law who appeared for the suspects when the suspects were produced in Court.

Perhaps the ordinary layman, the non-lawyer and even lawyers themselves, unfamiliar with the fundamental ethical provisions applicable to their professional practice, would have stood up in approval of such a demonstration. The question now arises as to whether such behaviour on the part of a group of attorney-at-law is firstly ethical and secondly, whether such behaviour transgresses accepted norms of good professional conduct, particularly that of lawyers.

It is not my intention in this writeup to deal with those hallowed principles of natural justice that are adhered to by any civilised society, the principles such as 'every suspect is presumed to be innocent until proved guilty' or 'natural justice demands that even... the worst criminal should have the protection of the law.' These principles of jurisprudence and many more had been evolved since the time of early man and more so in modern times, when such thought and effort is being generated to uphold fundamental and human rights.

The Constitution of the Republic of Sri Lanka, under the Chapter on Fundamental Rights, Article 12(1) provides "All persons are equal before the law and are entitled to equal protection of the Law." Article 13(3) states "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 under the Constitution of our land essentially recognises the right of an individual to be protected under the law and in seeking such protection shall be entitled to be represented by an attorney-at-law before any Court or an institution established for the administration of justice. In the light of this provision, could one imagine that members of the very profession, duty bound to protect the fundamental right of a citizen, seek to dissuade others of the same profession from protecting that right.

This right of representation by an attorney-at-law is further provided for under Section 41 of the Judicature Act No. 2 of 1978 and this Section states thus - "Every Attorney-at-Law shall be entitled to assist and advise clients and to appear, plead or act in every Court". Here again the unassailable right is vested by law in the Attorney-at-Law to appear on behalf of his client before any court of justice.

It would appear from the above codified provisions that the obligation of representation in any legal matter is of a mutually obligatory nature as between the client and the lawyer. On the one hand, if an individual is bestowed with a fundamental right of protection under the law, it is the bounden duty of those learned in the law to provide such protection if called upon to do so. Whatever the circumstances are, with rare exceptions, the lawyer cannot refuse to render the service he is called upon to perform. This fundamental principle of mutual obligation between client and lawyer has been recognised throughout civilised society and has been incorporated in varying degrees in Codes of Conduct governing the practice of the legal profession.Legal practitioners in Sri Lanka in the course of their professional practice are bound by the Supreme Court Rules of Conduct 1998, wherein Rule 5 provides thus - "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." This Rule is followed by a proviso, whereby the Attorney-at-Law may on his own volition refuse to act for a client, but cetainly not to refuse on the dictates of others and others would include members of his own profession.

I could now recall with mixed feelings the roll played by the Bar Association on the occasion of the death of one of its members - Wijedasa Liyanarachchi, whose death occurred while he was in the custody of the Police in late 1988. It resulted in an unprecetented move by the members of the Bar, whose entire membership was summoned to meet at Hultsdorp and having met, passed several resolutions, mainly directed at the Police and one resolution read thus.

"The Bar Association further resolves that no member of this Association should appear for a Police Officer in any Court or Tribunal until this Association makes an announcement that it is satisfied that meaningful steps have been taken in respect of paragraphs (a) and (b) of Resolution 3".

In adopting this resolution, I must say, the Bar faltered and faltered very gravely. The atmosphere then was tense and the feelings ran high and no one would dare to oppose the run of the ride. At the meeting held, despite the many references made by one or two members to some of the provisions and principles referred to above and despite the reservations expressed by a few others, the typical crowd sentiment prevailed and the resolutions were adopted, as it was reported then, unanimously.

I would not be surprised if some one or the other would cite the above resolution adopted by the entire Bar in 1988, even though operative for a limited period of time, as having created the precedent and in the light of such a precedent, would consider the recent demonstration by some members of the Bar as a matter of trivial consequence. In view of what has been stated above, such an attitude does not deserve any comment.

I have already referred to the provisions of the Constitution of Sri Lanka, which provisions ensure equal protection to all persons under the law and also ensures professional representation by an Attorney-at-Law when a person is charged with an offence. Apart from these provisions in the Sri Lanka Constitution, it is interesting to note that the Constitution of the Bar association itself provides for the protection of an individual right of access to courts and his right of legal representation.

In this Constitution one among several objects of the association states thus - 'the promotion, observance and the protection of human rights and liberties, including the protection of the right of access to Courts and of legal representation before administrative and investigating authorities'. It is therefore up to the Bar association to put the issue in its propeer perspective and advise its peers that it is the fundamental right of any citizen to be represented in Court by an Attorney-at-Law.

The professional duty caste on the members of the legal profession is not one in which sentiment or parochial consideration should ever be the motivating factor to deny the right of legal representation of any client. I have rushed to the print media with these observations with the fervent hope that the recent protest by some members of the legal profession, as was reported in the media, should never ever be re-enacted.

India & Sri Lanka to sign free trade agreement
From S. Venkat Narayan Our Special Correspondent

NEW DELHI, November 18: In a significant move designed to boost bilateral trade, India and Sri Lanka will sign a fast- track free trade agreement.

The agreement is likely to be initialled during Sri Lankan President Chandrika Kumaratunga's scheduled visit to the Indian capital on December 27.

The pact will completely remove cross-border physical trade restrictions and eliminate customs duty on import and export of goods between the two countries.

It will thus pave the way for the early establishment of a South Asian Free Trade Area (SAFTA) on the lines of NAFTA (North Atlantic Free Trade Agreement).

The decision to sign such an agreement was taken at the end of talks between the two countries on the subject, which concluded here yesterday. The talks were held between an Indian delegation led by Commerce Secretary PP Prabhu and a high-level Sri Lankan team, led by President Kumaratunga's Economic Adviser Dr. Lal Jayawardana.

Indian officials described the talks as "extremely positive."

A press statement issued by the Indian commerce ministry said the talks resulted in a constructive exchange of views on the elements of the free trade agreement.

There will be a couple of more meetings before finalising the details of the agreement, well in time to be signed by the two sides during the Sri Lankan president's visit here.

According to an Indian commerce ministry official, the idea of putting the free trade bilaterally on a fast track, ahead of the SAFTA time schedule (2000-2001), is to emerge competitive both in price and in quality while exporting to third countries, by using India's raw material advantages and Sri Lanka's value-addition skills, particularly in areas such as textiles and clothing.

Sources said the Indo-Sri Lankan negotiations are centred around what is called "rules of origin." In a free trade arrangement, the two countries will have duty-free access to each other's markets for goods produced indigenously. A certain amount of import content will be allowed in such goods.

An Indian official explained that the level of indigenisation needs to be carefully defined to ensure that third country products do not take undue advantage of the duty-free regime.

Trade analysts said the proposed bilateral trade agreement between India and Sri Lanka will enable the two neighbours to have enough "market space" to take advantage of complementarities. Once India drastically lowers duties, Sri Lankan exports to this country will pick up substantially.

At the moment, the balance of trade is in India's favour. While India exports to Sri Lanka goods worth US$400 million a year, Sri Lankan exports to this country amount to less than $50 million.

Said an Indian commerce ministry official: "India already has free trade agreements with Nepal and Bhutan. It will soon have borderless trade with Sri Lanka. We will soon put in place similar arrangements with Bangladesh and the Maldives."

Thus, six of the seven countries that are members of the South Asian Association for Regional Cooperation (SAARC) will have free access to the huge Indian market, the official added.

That leaves only Pakistan, which is unwilling to normalise trade relations with India citing political differences.

It may be recalled that during the SAARC summit in Colombo last July, Indian Prime Minister Atal Behari Vajpayee had announced that India would be willing to consider bilateral free trade agreements with its South Asian neighbours.

New Delhi followed this up by unilaterally removing all inititative restrictions (QRs) on import by India of 2,000 items from South Asian countries.

Sri Lankan President Kumaratunga responded swiftly to this initiative and wrote to Vajpayee, confirming that Colombo would be willing to negotiate such an agreement with New Delhi.

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