A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Monday, July 3, 2017
Bar Association of Sri Lanka (BASL) on Lakshan Dias
Image courtesy News First
H.V. PERERA on 07/02/2017
The reply sent by the Bar Association of Sri Lanka [BASL] to Lakshan Dias is embarrassing.
Faced
with a belligerent Ministerial threat to disenroll him Dias had emailed
Amal Randeniya, the Secretary – BASL seeking assistance. Randeniya’s
reply was to ask Dias to forward ‘an affidavit with all the facts
pertaining to the matter’. The first point of embarrassment is the
wording of the response itself. Lawyers wrangle about the specifics for a
living yet, Randeniya chooses to be vague. After all there are several
‘matters’ here. They are;
- The threat made by Minister Rajapakse.
- The matter regarding the statement made by Lakshan Dias with regard to the attacks on Christians and their churches.
On both matters an affidavit is unnecessary and the request ridiculous.
Why does the Bar Council need an affidavit on the threat [point (a)] as
Minister Rajapakse has not denied it? In widely publicised statements
Rajapakse has in fact confirmed it.
The other ‘matter’ is with regard to the attacks itself. This is even
worse. How and why should Dias give an affidavit on the attacks? He
never said he has personal knowledge of these incidents. He is relying
on a report by the National Christian Evangelical Alliance of Sri Lanka
[NCEASL]. The report was forwarded to Randeniya and tabled at the Bar
Council meeting. So when he has no personal knowledge and when he never
said he had personal knowledge to ask for an affidavit is absurd.
Every good lawyer knows the fundamental rule of evidence that a person
can state by affidavit only what he knows from his personal knowledge.
Information he receives from a third party [like the NCEASL report] is
what lawyers call ‘hearsay’ evidence’. Hearsay cannot be included in an
affidavit. Randeniya, the rest of the BASL Executive Committee and the
Bar Council ought to read the judgments in Gunasinghe Banda v Navinna
[2000] 3 Sri L R 207 and Seneviratne v Dharmaratne [1997] 1 Sri L R 76
on this point.
So the BASL response is embarrassing because it is technically bad. It
is an example of very bad lawyering. For after all what is the Bar
Council going to do with the affidavit? Does it plan to cross examine
Dias?
In the range of responses available to the Minister of Buddha Sasana,
threatening a lawyer with disenrollment is the worst of its kind. It’s
the nuclear option. It is an overreaction. The fact of the Minister
threatening legal consequences to someone for a statement made on a talk
show is itself problematic. It raises questions about the Minister’s
own fitness and ability to function as a policy maker. These threats
discourage other lawyers from taking on and speaking about unpopular
causes. Even if you eventually win the case against you, the fact is you
have to suffer through it. This is not how free and fair societies
function.
The BASL should stand up for the freedom of lawyers to act without
having to look over their shoulder for overreacting bullies. The BASL
must protect this freedom for it is because lawyers have spoken and
fought for unpopular causes that we enjoy the rights and freedoms we
enjoy today. The legal profession is the profession of Abraham Lincoln,
Mahathma Gandhi and Nelson Mandela. Impeachments and disenrollments are
the hallmarks of tyranny and dictatorship. Rajapakse’s bullying was
unacceptable and it should have been condemned. The BASL side stepping
is embarrassing and unfortunate. It is a small-minded response having
failed to see the bigger picture.