The courts and other bodies described above function in order to take decisions according to the law. To advise them about such decisions, or rather to present arguments on behalf of those seeking decisions, there are professional legal practitioners known as lawyers. Lawyers can represent citizens on both sides of a civil dispute. They can also represent citizens against the government in matters of criminal or constitutional law. They may also appear before arbitration bodies and other tribunals. In addition, lawyers assist in the preparation of legal documents, including contracts, property transfers and wills. In theory, such arrangements between parties do not require lawyers. But it is advisable to make use of their expertise to ensure that all legal formalities are observed. This should prevent future legal disputes, though as we know such precautions may not always be successful.
In Sri Lanka we also run the risk of lawyers not always performing their tasks with efficiency and / or honesty. We do not have effective systems of regulation with regard to legal practitioners. I have suggested to the new Minister of Justice that he consider some of the points made by Nagananda Kodituwakku, one of the best public interest lawyers we have. But sadly I have not yet had a response, and I fear that we will not, despite the commitment of the government to reform, deal with what is a major problem for citizens, namely the fact that they cannot always rely on lawyers.
Mr Kodituwakku notes that ‘at present there is no authority to regulate the legal profession in this country, leading to a lot of abuses and victimization of innocent litigants. In leading democracies like in the UK, there is a mechanism in place to protect the citizens from unscrupulous lawyers. It is noted that in the UK a large number of lawyers found guilty for various abuses by the Regulatory Authority are being either disenrolled, suspended or imposed (with) compensation orders.
The Regulatory Authority for lawyers in the UK is empowered with wide powers, which include searching premises, seizing of records, sealing of offices and prosecuting all unscrupulous lawyers against whom prima facie cases are established.’
It would be useful then in Sri Lanka too to protect the citizen and to instill discipline in the profession by establishing through a law a similar body with wide ranging powers. Amongst the provisions that should be introduced to safeguard the public, he suggests the following –
1. Each client be issued with a client care letter – This shall be made immediately after the initial instructions are given and it should specify the nature of the case, the law involved the rights of the client, fees and how to pay and details of the regulatory authority to make complaints in cases of professional misconduct or negligence.
2. Introduction of an annual practicing certificate system – This shall be earned through a competency check in the relevant field of law practice by the AAL. The issuance of the practicing certificate shall be subject to a specified fee of not less than Rs 10,000/- annual license fee
3. Mandatory regulation to display the license at a prominent place for client’s scrutiny
4. Mandatory 20 hour Continuous Professional Development for all AALs
5. Introduction of a mandatory indemnity insurance policy to all AALs – with a minimum of threshold of Rs 1,000,000/- , which should go up according to the practice. Any compensation order be made against the indemnity insurance
6. All complaints made to Regulatory Authority shall be published in the Law Gazette which has be published twice a month
7. All punishments such as compensation awards, suspension and removal from the Roll shall also be published
8. Mandatory maintenance of the Accounts (client and office) with mandatory submission of the accounts authenticated by a certified auditor to the Regulatory Authority by a specified date
9. Stipulation that no fees over Rs 500.00 be charged by cash but by ‘account payee’ Cheque only
10. All interests accrued for money in the client account be credited to the respective client
11. Establishment of a Code of Ethics Conduct to all AALs
While private lawyers need regulation, it is even more important to make sure that officers who work for the state do their duty, since they are the representatives of all the people. To represent the government in cases involving criminal or constitutional law, the government has a legal department, which in many countries functions under an official known as the attorney general. It is the responsibility of the attorney general to look into matters where a criminal offence has been alleged, and decide whether there is sufficient evidence to bring a prosecution. The official, or a member of his or her department, then prosecutes on behalf of the government in such cases. Conversely, in matters of constitutional law, the attorney general responds to petitions brought by citizens alleging breaches of the law by government. In cases regarding new legislation, he or she advises the government about the legality of proposals, and presents the views of the government in the courts. This may also involve responding to questions and objections raised by citizens.
In order, as he puts it, to restore public confidence in the Attorney General’s Department, Mr Kodituwakku makes the following suggestions –
a. AG’s office shall be made absolutely independent – As at present the AG Department functions under the Executive President. Although it is required to uphold the Rule of Law, in practice what it does is completely the opposite. Having become absolutely subservient to the President, today its prime duty is to act according to the whims and fancies of the Executive. It withdraws the indictments serve on ruling party politicians and suppresses cases where serious charges are being leveled against those who hold high profile public offices. This pathetic state of affairs is beyond the standards expected from the office of the Attorney General.
AG’s Department shall be freed from the shackles of the Executive president and made to uphold the Rule of Law with no fear or favour.
b. Recruitment of lawyers to the AG’s Department – The lawyers who join the AG’s department are public officers. At present there is no proper and transparent selection standard but purely based on connections to the AG’s staff and to the serving judges in the superior court system, which shall be stopped forthwith.
Their recruitment shall be based on a competitive exam followed by an interview by a panel of serving judges in the superior court system through an acceptable and transparent process.
c. Strict compliance with the Rule Book
At present State Counsels pay no respect to the Rule Book and judges, specially those who are appointed to the Judiciary, do not take any notice of this grave abuse of office despite inordinate delays caused to the dispensation of justice, which sometimes dragged on for years. This needs to be stopped forthwith in the interest of justice and fair play with stern action against abusing the Rule Book.
Similar high standards should obtain with regard to the other legal department Government has at its desposal. This is the Legal Draughtsman’s Department, which is meant for the preparation of legislation. It is the responsibility of the legal draughtsman to prepare legislation for the government. His work also includes checking whether regulations brought by various ministries are in accordance with laws that have been passed previously.
Governments also appoint officials known as justices of the peace, who authenticate private documents. Individuals who are recognised as trustworthy are invested with the authority to certify documents. The burden on government officials with regard to guaranteeing the credibility of documents is thus reduced. Unfortunately, the politicisation of the position has meant that such certification, while serving a formal purpose, does not always command credibility.