BASL issues statement on reference made in respect of Judiciary and Members of the Bar

The attention of the Executive Committee of the Bar Association of Sri Lanka has been invited to several media reports that have been given much publicity through the electronic and print media, where references have been made to concluded and pending court cases, and the individual conduct of Judges, prosecutors and Attorneys-at-Law representing their respective clients.

It is an accepted norm that no references can be made to matters that are pending in court. Any party to such proceedings, any third party and even members of the legal profession should refrain from making such comments on pending litigation. This rule based on the doctrine of “sub judice” has been consistently followed within our legal system almost since its inception. 

Even in the recent past there were a quite a few instances where references were made to pending cases, and sometimes the Judges who heard such cases. It is regrettable that this practice is permitted to be continued without any notice being taken in such regard.

What is more alarming to note is that there are a few instances where members of the legal profession too have resorted to this unsavoury conduct.

Judges and prosecutors exercise a public duty, and the BASL is of the opinion that no such Judge or a prosecutor should be taken to task for conducting a prosecution or hearing a case. Our judicial system is a well-structured system, and any party affected by a decision of a court could always appeal or follow the process identified by the law.

It is a basic tenet in our criminal justice system that every suspect or an accused has a right to be defended by an Attorney-at-Law. Every aggrieved party too has a right to be represented by an Attorney-at-Law. This right of representation is guaranteed by the provisions of the 1978 Constitution, the provisions of Section 41 and 42 of the Judicature Act of 1978 and Section 260 of the Code of Criminal Procedure Act of 1979.

Apart from the above statutory provisions, the right of representation is an extremely important aspect encompassed within the concept of Rule of Law. The BASL unreservedly condemns the statements made with reference to concluded cases, pending litigation, role of Judges, role of prosecutors and the right of representation relating to litigants who are parties to court, The BASL requests its members to refrain from making any such references and to refrain from using the media for such purpose. We request our members to act within the ethical standards of the profession and preserve and protect the dignity of the profession.

If any such conduct continues, the BASL will not be hesitant to refer such matter for appropriate action. The statement was signed by BASL President Kalinga Indatissa PC, Deputy President Shavindra Fernando PC, Secretary Kaushalya Nawaratne, Treasurer Nalin De Silva and Assistant Secretary Vishwa De Livera Tennakoon