Law vs. ethics and Akuregoda incident: Is this a turning point?

When something happens to lawyers and members of the BASL, the representatives of the guardian deities of the law come out with protests and slogans and criticise the authorities freely and are even ready to violate the country’s supreme law, the Constitution. But if the same happens to an ordinary citizen or any other professional who is not part of the legal profession, lawyers keep silent

The killing of a lawyer and his wife in broad daylight at Akuregoda, a High Security Zone (as defined by some), has drawn the attention of many people, especially lawyers and a few politicians. This led the Bar Association of Sri Lanka (BASL) not only to convene a Special Meeting of its members but also to attend courts the following day of the incident without wearing their symbolic and respected attire, the black suit.

As reported, such a Special Meeting of all its members had been called by the BASL nearly thirteen years ago, when the Rajapaksa regime brought an Impeachment Motion to expel the then Chief Justice Shirani Bandaranayaka.

At a press conference held to address the Akuregoda incident, the BASL President said that this was a fatal occurrence which blows away the Rule of Law, and he categorically accused the Government and Police Force of failing to ensure the security of the people.

At this press conference, a journalist raised a very simple but deep question. The question raised was: “If the gunman who shot the lawyer and his wife at Akuregoda is arrested by the police, will your members of the BASL appear on behalf of the gunman to give him legal assistance?”

The BASL President and the other officials who were criticising the Government and the police seamlessly were almost stunned and speechless when this question was raised. However, the President of the BASL said that any individual has the right to seek legal assistance of their own under the prevailing Constitution of our country and therefore, under legal principle, no lawyer can refuse to provide legal assistance to a person who seeks such legal assistance. Indirectly, the answer to the question was, “Yes, we will represent the accused.”

Whatever was said by the BASL President at this press conference, when the suspected murderer was subsequently arrested and produced before the court by the police, no lawyer appeared on behalf of the suspect. However, when the suspect was asked by the Judge whether he (the suspect) had anything to disclose, he answered positively, and it was reported that the suspect had stated something covertly to the Judge inside the Judge’s official room.

This clearly shows that the members of the BASL have violated the Constitution by not appearing on behalf of a suspect.

On the other hand, the BASL has never summoned such a Special Meeting of all its members or openly criticised the Government and the police in similar incidents that took place in the recent past throughout the country. It is not a secret that some leading eminent lawyers, knowing well the background of the criminals, have continuously appeared in order to free murderers, drug traffickers, underworld figures and sexual predators, and in some cases a few lawyers have escorted such criminals in their own vehicles.

Setting aside the Constitution and the applicable law, lawyers have acted differently in this case. It proves that if the issue directly affects lawyers, their legal responses and reactions are totally different. Therefore, the professionalism of the legal profession is debatable. When something happens to lawyers and members of the BASL, the representatives of the guardian deities of the law come out with protests and slogans and criticise the authorities freely and are even ready to violate the country’s supreme law, the Constitution. But if the same happens to an ordinary citizen or any other professional who is not part of the legal profession, lawyers keep silent because such occurrences bring big money to fill the pockets of their black suits.

However, we, as a nation, should profoundly appreciate the action taken by the lawyers by not appearing for the suspect who is said to be the suspect killer of the Akuregoda lawyer and his wife. This action directly reduces the probabilities that such a suspected killer has in defending himself without the assistance of an eminent lawyer.

Recently, a number of such killers and drug traffickers had to be brought into Sri Lanka from overseas with the assistance and cooperation of international agencies. Most of these criminals had been arrested earlier by our police force and, after producing them before respective courts, they had been released on bail. Thereafter, they eloped to foreign countries through illegal means. The credit for obtaining bail for these notorious criminals should go to the leading eminent lawyers who appeared for them. Knowingly or unknowingly, these lawyers have helped these criminals to elope from the country. In case the lawyers had not appeared, as in the case of the Akuregoda incident, most of these criminals would not have been granted bail and would not have been able to escape.

In other words, lawyers have acted ethically in this Akuregoda incident, keeping the applicable law aside. The action of lawyers in this case is ethical though it is illegal. That is a very positive turning point between law and ethics. The applicable law of the country is that no lawyer can refuse to appear on behalf of a suspect if such legal assistance is requested. But our brave lawyers ethically acted in this Akuregoda incident, ignoring the law. If the lawyers continue this ethical conduct for all such similar occurrences that are taking place almost every day in our country, most of the killers, drug traffickers and other criminals could have been easily brought under control and penalised. Such ethical responses of lawyers will certainly assist the authorities to minimise or eradicate all those crimes. The entire nation would warmly welcome such ethical conduct of lawyers.

Law defines the legal and illegal boundaries and consists of Government-enforced rules with legal penalties aimed at maintaining social order. We know that laws are enacted by Government bodies such as legislatures and courts.

Ethics vs. law

However, ethics refers to well-founded standards of right and wrong that prescribe what humans ought to do, generally based on rights, obligations, benefits to society and fairness. That is why ethics is defined as the moral principles governing persons’ behaviour or the way they conduct activities. Ethics is what guides us to tell the truth, keep our promises or help someone in need. There is a framework of ethics in our lives, helping us make decisions that create positive impacts and steering us away from unjust outcomes.

Ethics, generally broader than law, covers a wide range of moral choices, while law only covers specific behaviours that society deems necessary to regulate. An action can be legal but may be unethical. An action, on the other hand, can be illegal but may be ethical. As well, ethics is subjective and consists of internal principles that guide individual action. These characteristics define a person’s understanding of what is fundamentally good and right and guide how that person will make decisions and behave in challenging situations.

Due to some loopholes in the applicable law and legal points brought by erudite lawyers, most criminals could not be punished and the decision on punishing them drags on for years and years. Therefore, most will agree that ethics are needed for a well-behaved society. Such ethical conduct will drive away criminals who destroy the fabric of a well-behaved society by threatening the lives and well-being of citizens.

Most criminals who engage in crimes firmly believe that they can evade punishment or at least move freely in society for a considerable length of time until a final decision is taken, if an efficient lawyer is employed to safeguard them. They know, above all, what matters in this regard. That is money.

People of our country have many doubts about the double standards hidden within the legal profession. This is a good opportunity available for the BASL to dispel these doubts and expose their genuine and honest behaviour in carrying out their professional duties and to prove that they are not individuals who sell their profession only for money. That can be done only by not appearing on behalf of known notorious criminals and refraining from providing legal assistance or protection to such criminals, as in the Akuregoda murder case.

No one can find fault with lawyers who refuse to appear for such criminals. It is ethically proved by the lawyers and well accepted by society as in the Akuregoda incident. As well as refraining from appearing on behalf of criminals, lawyers can assist the authorities in creating a well-behaved society.

In our society most people are well aware that lawyers provide legal protection to criminals not to serve justice but to obtain a large portion of the laundered money illegally earned by these underworld figures.

Why cannot these eminent lawyers make a collective decision not to provide legal advice or appear on behalf of criminals? It is a public secret that most of these lawyers are acting not as legal professionals but, in most cases, as paid servants of these well-known criminals. If one analyses the bailouts of these criminals, in most cases they have happened beyond any doubt as a result of technical slip-ups pointed out by skilled lawyers who had appeared for them, and not because these criminals are innocent or not involved in such crimes. Therefore, if these lawyers refuse to appear for these well-known criminals, most criminals would not be bailed out and they would not be able to move freely in society as well-behaved, well-known gentlemen. Indirectly, it may pave a conditional path for these criminals to prevent such crimes.

The BASL took this tough decision at the Akuregoda incident to safeguard a fellow member. If the BASL can apply the same ethical practice by not appearing for known notorious criminals in all other similar crimes, that would be a good stimulus, and what a lucky country Sri Lanka would be.

(The author is a former qualified and professional banker and holds Bachelor of Science Business Administration, Special and Master of Arts Buddhist Studies)