PROFESSION THREATENED TO ‘DOWN TOOLS’
Named after the Dutch General Hulft, who was shot by Portuguese in 1656— the place where the gruesome murder took place was named Hulft’s Dorp, [dorp means village in Dutch] and it soon became Hulftsdorp,sri Lanka’s legal hub. While the lawyers always upheld the decorum and dignity of the profession, the Government service medical profession in the past deviated and was busy with press briefings on ‘struggles’, most instances on issues that did not affect them or the society at large, but serving political interests of some members who were affiliated to Parties. However, they have amended their ways since then.
Archival records related to Hulftsdorp tracing the history on lawyers’ attitudes, collective agitations on certain issues that directly affected their professional career revealed an instance where of Lawyers threatened to ‘down-tools’ 62 years ago in 1958. They opposed Justice Minister M. W. H. de Silva in the Bandaranaike government, opposing his suggestion to introduce an enactment aimed at messing up their freedom in charging fees from clients. The Minister termed it as irrational and arbitrary. [M. W. H. de Silva was a grand uncle of Harsha desilva, former Minster]. The Bar Council met and decided to launch trade union action, and passed a resolution condemning the idea.
The Minister wanted to categorize the lawyers as and regulate the levying of fees. Before Administration of Justice Law was enacted, they were called proctors and advocates, [commonwealth states Barristers and Solicitors] since 1973 all became Attorneys-at-law.
The minister quoted numerous complains of ‘irregularities committed by proctors in connection with cases entrusted to them. By ‘irregularities’ he meant failure on the part of a lawyer to diligently be present at all its stages of a case; failure to apply the funds entrusted to a lawyer; misappropriating of monies that should go to his clients. The intention of proposed legislation it was stated, to ensure public confidence in the profession.
ALL-ISLAND LAWYERS MEET
All branches of bar met to discuss the principle of Ministerial, or Legislative control of the legal profession. Excerpts from the proposed communiqué drafted stated:
‘Proctors are not unmindful of the standards required of their profession: these are however not to be achieved by imposing impracticable and impossible legislation. There can be no objection to any requirement that a proctor shall issue receipts for all sums he received. A proctor should be required to obtain a receipt from advocates to whom he pays any fees and advocates should be prohibited from receiving fees except through proctors.
The legislation is totalitarian in outlook and is a departure from democratic principles and the tradition associated with the legal profession. It proceeds on the assumption that the public and the state require to be protected against the profession. It is an unreserved reflection on the whole profession and affects the honor and the prestige which the profession had deservedly enjoyed over a century.’
However, S. Nadesan, senior counsel raised a point of order saying that he had no objection to an informal dialogue of problem common to proctors and advocates, but it was not desirable that such resolutions be put to the house and voted. Such resolutions should be measured separately by the Law Society in the case of proctors and by the general council of advocates for Advocates. Another senior lawyer C. Thiyagalingam QC, objected to the point of order.
NADESAN VS WEERAMANTHRI
E.G. Wickremanayke QC who presided ruled against the point of order. He in fact informed the membership that the minister told a deputation of the Bar Council that morning that he would not proceed with the proposal if lawyers themselves took steps to ensure no abuses within the profession. C.G. Weeramanthri QC said that if politicians controlled the profession, it will not function competently, and public confidence cannot be upheld or make by rules and regulations. The relationship between lawyer and client was one of trust and any imposition of control of fees would take away the public confidence built up over the years by the devoted service of generations of lawyers. On minister’s statement that some lawyers evaded the payment of income tax he said, “I have it on authority that there was no more honorable body of tax payers in this country than lawyers.” He argued, that there existed an organizations to take disciplinary action against defaulters. The minster’s remedy must not to control the profession by regulations, but to raise the powers of the central bodies of the profession.
He observed, “Some of our rules and customs and institutions, borrowed from England may be a little out of date. If so, it should be left to the profession to eliminate any hardship that may affect the litigants. We fully oppose the interference by appointing a controller of fees. It will lead to extra inconvenience to clients; likely abuses in controller’s office. We also resist minister’s plan of having a schedule of fees giving the minister power to fix a high or low scale.”
In concluding Weeramantri said, “It is our duty as professionals to be watchful and warn the public of the dangerous drifts in legislation and guard against addition of bureaucratic control. The proposed move to prevent ministerial orders from being subject to appraisal by courts take away certain unalienable right of every citizen to appeal to the courts. It is the duty of the profession to condemn such legislation.”
S. Nadesan highlighted that since the two professions were beings of statute it was not proper for them to protest against legislative control, he said, “Certainly, we can protest against ministerial and executive control but not Legislative control over the profession” he added, “Just as much as the state had the right to control wages and even prices of necessities by legislation, they had the right to manage the fees of lawyers as well.
Issadeen Mohomed said that if lawyers refrain from speaking on behalf of public they were a disgraceful lot. “We must speak without fear”. He said the government has no right to set up a CID unit to go behind Lawyers.
V. Kumarasamy said, “They are trying to invade this field, as everything has gone, and only the Independence of Judiciary remains. They want to control our fees, next they will try to control our arguments, he remarked. The resolution was passed by a huge majority.
There is the usual resemblance between politics and the legal profession. Lawyers always play an active role in politics. Their knowledge of law, judicial system and the constitution facilitate them to be active in politics. They take up issues like political and fundamental rights at institutions they represent.
The alleged malpractices of proctors may have been received by the then Ministry of Justice. The criterion should not be the number of such complaints, but the number of cases that have been established. Most complaints received on the face of them do not worth further consideration and are misconceived. Lawyers should perform themselves with integrity, and only they can promote public confidence in the judiciary, and are expected to deal with clients with courtesy and honesty. Deceitful or disreputable conduct would diminish the public confidence in the profession, especially in charging fees.
It was George Bernard Shaw who said, “All professions are conspiracies against the laity”
Author can be contacted at:
kksperera1@gmail.com