BASL should be in the forefront of the fight for justice
The arrest and detention of attorney at law Hejaaz Hisbullah purportedly in connection with investigations relating to the Easter Sunday bombings of April 21, 2019 has had an unexpected fall out with 216 attorneys at law writing to the Bar Association of Sri Lanka ( BASL) urging the BASL to refrain from intervening in the matter of his arrest.
The lawyers in their letter dated April 29, 2020 (the 29th Letter) were responding to an earlier letter dated April 24, 2020 ( the 24th letter) addressed by 213 attorneys at law to the BASL, raising concerns with regard to what they described as “the very serious situation surrounding the detention of Mr. Hejaaz Hizbullah." They went on to urge the BASL to “ensure Mr. Hizbullah’s rights are guaranteed and due process is adhered to.”
Nowhere in their seven page letter (the 24th letter) did the attorneys at law comment on the merits or otherwise of the subject matter of the investigations relating to Hejaaz Hisbullah’s detention but only requested the BASL to ensure that due process is adhered to. Yet in their 14 page missive of April 29, the signatories urged the BASL to keep out of the issue and “allow the law enforcement authorities to conduct a free and fair investigation.”
Although the signatories to the 29th letter cited several arguments in support of their request to the BASL not to intervene, none of these arguments related to how the ensuring of due process of one of their colleagues would jeopardise any investigations that were being conducted by the Police.
Most of the arguments in the 29th letter relate to the importance of national security and statements by the Police relating to the investigations. In fact the contents of what the Police spokesman said at a media conference have been elevated to “common public knowledge” of evidence of Hejaaz Hisbullah’s “involvement in extremist or extremist related activities.”
Clearly what the Police spokesman said was a mere statement of the Police position with regard to the investigations and is always subject to scrutiny and review by the courts. To go to the extent of attributing to this Police position the status of “common knowledge" is clearly unfair by Hejaaz Hisbullah. It is as bad as referring to him as “one Hejaaz Hisbullah” in the 29th letter despite him being sufficiently well known among the legal fraternity in Hulftsdorf.
The attorneys at law who wrote to the BASL by their letter of April 24 limited themselves to a request for the BASL to ensure due process and to ensure that his rights are safeguarded in the process of investigation. The rights the letter referred to are the very rights that any lawyer would urge for his client in any court of law and does not in any way impinge on the guilt or otherwise of the offence with he is charged. These are rights that are universally accepted to protect individuals and to ensure they obtain a f air and independent investigation and trial.
In fact, such safeguards such as the presumption of innocence while protecting the life, liberty and security of every individual also ensures the truth relating to the subject matter of the investigation not only being elicited but also those responsible being held accountable.
Whether the BASL should or should not intervene in any matter does not really depend on whether or not it relates to a member or not as suggested in the 29th letter. The remit of the BASL goes much further and relates to all issues relating to the rule of law, administration of justice, democracy and justice.
This is understandable since the very nature of the legal profession is to ensure that the rights of a lawyer’s client are not encroached upon in any form whether it is from the State or any other agency. Indeed the bread and butter of every member of the legal profession is earned through zealously fighting for the rights of those on behalf of whom one has been called upon to appear.
The independence and integrity of the legal profession is the bedrock on which the independence of the judiciary is built on. As the 24th letter points out since a free, fearless and independent legal profession is one of the most important features of a democracy to protect rights of individuals, it is the duty of the leadership of the professional body to do its utmost to defend the ability to function as lawyers, without obstruction, fear or favour.
The 29th letter argues the BASL’s intervention in the matter of Hejaaz Hisbullah can erode the important influence it has with the authorities. However the BASL’s actions should not be governed by its desire to be in the good books of the authorities but should rather be to ensure that it is a voice for justice, rule of law and democracy.
(javidyusuf@gmail.com)