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‘The Bar cannot afford to be stifled by party politics’: Saliya Pieris, PC

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In an interview with Randima Attygalle, the newly elected President of the Bar Association of Sri Lanka (BASL), President’s Counsel Saliya Pieris elucidates on his road map supported by the cornerstones of ‘principled position’ and ‘independence’.

Q: As the 26th President of the BASL responsible for steering it, how would you define effective leadership?

A: My view of leadership is about building consensus among members and leading through that. It takes more than listening to the wishes of the majority, but also taking the lead on issues discussing and perhaps pointing the way to the path the Association should take.

My take on the members of the BASL is that a vast majority is reasonable and would take a principled position. I think this was evident during this election. I had the support from a cross-section of people. I need to emphasize that this election was not on political lines. Members of the Bar want an independent leadership and I’m not the one who will push my views because I believe that through quiet convincing you can certainly bring people to one table.

 

Q: You secured a sweeping majority at the recent election. Can you recollect any previous occasions of similar majorities and also of uncontested first time presidencies?

A: There had been large majorities previously when there was a huge gap between the contenders. My predecessor Kalinga Indatissa’s win was a good example in this regard. But if it was among PCs of equal seniority, I can’t recall a similar majority where there were two candidates of equal seniority. As for uncontested presidencies, Geoffrey Alagaratnam PC was elected uncontested in 2015. There was also an instance when a candidate died and as a result there was no contest.

Q: Taking a ‘principled stand’ was underlined in your manifesto which you reiterated in your address after the announcement of the election results. How do you plan to align the mandate of the BASL with this?

A: The BASL by its mandate is bound to uphold the rule of law, to support the independence of the judiciary and to safeguard the fundamental rights. On these cornerstones, the Bar must take an independent position, irrespective of party politics or whatever the government in power. However, the Bar needs to fully cooperate with the government in furthering the administration of justice. But at the same time, where the government of the day is wrong, if there is a threat to the independence of the judiciary, the rule of law and fundamental rights, the Bar must take up a principled position.

 

Q: How important do you think it is for the BASL to be more vocal on issues of national interest, to lend voice to social justice, marginalized groups etc.

A: It is imperative that the voice of the Bar is heard as an important institution. But having said that, I repeat that the Bar cannot become politicized, because if it is seen as partisan, it can affect the credibility of the institute. It is only when independent institutes exercise a high degree of independence that there is respect for the views of that particular institution.

Q: What measures do you propose to enable more opportunities to those in the Junior Bar in terms of professional exposure, mentoring etc.?

A: One of the programmes I have already proposed is a mentoring system because today many juniors start practicing on their own without the guidance of a senior lawyer. In the case of my own practice, although I’ve worked with senior lawyers I have never had a permanent senior. I believe that there should be senior lawyers to guide the juniors in the profession.

In the long run, we should also deliberate how the Bar can support new areas of practice. Today there are 800 to 1,000 lawyers passing out annually and many end up in court. But there can be areas such as taxation where many new openings are possible for juniors. We are also looking at how the Bar could facilitate scholarships and exchange programmes to support them. We have also proposed to strengthen the continuity of legal education at district levels in collaboration with the local Bars.

During my election campaign I had very close interaction with hundreds of junior lawyers and my experience with them is that they have a lot of potential, a lot of skills and they are people who like to work hard. I’m also pleased to say that many of them are principled and we should optimize these strengths and help them reach their true potential.

Q: We have good laws in our statutes but despite that legal literacy among the masses remains poor. What is the role the BASL can play here in enhancing legal literacy especially among the marginalized groups such as those with disabilities etc.?

A: I have taken stock of this situation in my programme of action as well, and we are trying to lobby for basic law to be incorporated into the school syllabus. We need to revive the good practices such as the National Law Week which was initiated during the tenure of Nihal Jayamanne PC. Legal luminaries such as Judge C.G. Weeramantry had long advocated legal literacy among people and we need to look at how the BASL can sustain the efforts to expand its reach, perhaps through institutions such as the Legal Aid Commission.

Q: In terms of our legal education, the choice of subjects still remains very conventional despite the digital age that we live in. Diversification in legal education is also a want of the hour. As a lecturer of law, what measures do you propose to bridge these gaps?

A: Law should essentially be multidisciplinary and study of law too should be more integrated; it cannot be confined to so-called ‘legal subjects’ alone. Law students must have a knowledge of other disciplines as well. We know that accountants study business law and aspects of commercial law. This kind of an interdisciplinary approach should be replicated in our legal education as well. In certain universities in the UK, for instance in the University of Warwick, there is a subject called ‘Shakespeare and the Law’ where they study certain plays of Shakespeare related to law. In the Department of Law at Peradeniya, Sociology is now being taught which is a progressive move. Sometimes ago there was a proposal to introduce a module on Law and Literature at the Colombo Law Faculty.

We need to have collaborative discussions with our universities and Sri Lanka Law College as to how the syllabuses can be made more productive. Very often even law graduates end up in the legal profession. So while making Law College more practical, suited to modern ways of learning, at the same times there should be measures in place to make academic training at Law Faculties analytical. So when these law graduates join the Bar, their academic training can be productively translated into the practical setting. In this context, the BASL can make representation on how to enhance the quality of legal education in the country.

Q: Although we have seen a notable shift in female representation within the judiciary, it is not so in the Private Bar. How can women lawyers be empowered to be more visible in the Private Bar and play a more proactive role?

A: We have many female instructing attorneys and outside Colombo there are many female lawyers who appear in courts on equal terms with men. But when it comes to Colombo, especially the chambers, there is a disparity which we have recognized. We have suggested that the Bar should have a committee of females lawyers through which their concerns and grievances can be brought to the table and deliberated to remedy them.

One of the key bottlenecks which discourages female lawyers of the Private Bar is the working schedule. There needs to be more flexibility in working hours and ambitious as it may be, a day care center in Hulftsdorp for their young children is desirable. There is also a strong need to have more leadership positions in the BASL- more women involved in the workings of the BASL at different levels. Female representation in executive committees of the Junior Bar is equally important. It is imperative that female lawyers should be empowered to reach their true potential.

Q) Coming from a journalistic family – your father Harold Pieris being once editor of the Observer and you too having had a stint with the now defunct Sun – what are your thoughts about the present media culture?

A: Lack of balance to see that the other side of the story too is something which I believe is lacking in today’s media culture. There seems to be ‘self-censorship’ among many journalists. In print media there is civil defamation available for the aggrieved party but when it comes to social media content, there is nothing that a victim can do. Some of the hate content is not only partisan but also paid for by certain people, which makes it very unpleasant. This however is the case the world over. While freedom of expression needs to be upheld it is imperative not to exploit the tool.

Q: As the first chairman of the Office of the Missing Persons and also as one time member of the Human Rights Commission, what are your observations about Sri Lanka’s reconciliation process and what needs to be done to achieve real reconciliation?

A: My personal take on this issue is that it is really important to narrow the gap between the communities. The perception of reconciliation is varied in different parts of the country. So unless you really convince people and a majority of people are part of the process, reconciliation is not going to be a reality. If we really want to reconcile we need to bring a majority on board in the process because without that, if a majority sees reconciliation as a bad word, or as something which is very alien, then we are not going to succeed.

Any process of reconciliation should be domestically driven and the institutions which are there for the promotion of reconciliation should also be domestically driven. For that purpose, domestic mechanisms established should be dynamic and allowed to be independent. If people are suspicious about a process, it will not be successful.

Q) We are braving hard times. As the newly appointed BASL Chief, what would be your mandate to contribute to the national effort of fighting the pandemic and making a difference?

A: I think where the Bar is concerned, the contribution will be through the justice system. During the lockdown some of the apex courts were not functional because we were not geared, but today we have seen the Supreme Court making rules relating to that and the Justice Ministry has also been making efforts on digitization. So the Bar should proactively cooperate with the government and courts in making this exercise of fighting the effects of the pandemic a success.

Those in the justice sector including the lawyers and judges should also be on the list of those being vaccinated as they interact with the members of the public. If their safety is not ensured, it directly affects the justice system because we saw the closure of certain courts in the past few weeks and a number of lawyers had to be quarantined. Then there are effects of the pandemic which need to be taken stock of, the loss of income, the number of cases diminishing, the delays of the justice system- all these should be addressed by the Bar as a stakeholder. The Bar will be one stakeholder in this process and we need to fully cooperate with the Ministry of Justice and the judiciary to tackle these issues.



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Features

Rise of Dual Power amidst Covid 

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We had so many kings in our Sinhala Balaya of many centuries. There were many questionable deals on succession by members of this royalty, and others who came to those realms. But we have yet to hear of any brother of a ruling monarch rushing abroad in the midst of what may have been a national crisis, moving to a disaster.This is the stuff of Sinhala Power in the 21st Century. It is a show of the Raja Keliya – the power game, where dual citizenship is the dominant factor. The Sri Lanka, Mawbima home, is of lesser importance than the Videsha mawbima, especially if one’s health has to be handled by foreign medical sources; even if the Videsha Mawbima is the biggest affected by the Covid pandemic.

The appointment of Task Forces to deal with important issues facing the country and the people is the substance of the current Saubhagyaye Dekma – Vision of Prosperity and Splendour. Appointing a brother to head task forces of key importance is the show of dominant family power that prevails in this country today. But brotherly feelings are certainly not important when a dual citizen thinks of the greater importance of the Videsha Mawbima. The tasks of Economic Growth, Eradicating Poverty and Assuring Food Supply, as well as the more recent Green Socio-Economy must all be pushed aside, when the call of the Videsha Mawbima for healthcare is the stuff that matters.

This is the brotherly Vision of Prosperity and Splendour, or the Sahodara Saubhabyaye Dekma.

The Covid pandemic has certainly brought much contradictory thinking, especially in the government, on how the health of the people in this country, non-dual citizens, could be assured. Minister Udaya Gammanpila, a Cabinet spokesman too, is certain that mixed vaccinations of different brands and qualities, is the means to protect the people. 

Dr. Sudarshani Fernandopulle, State Minister on the subject, thinks differently, on the lines of the WHO specialists, who have stressed there is no evidence so far to authorize mixed vaccinations. The other minister of health and vaccination issues is somewhat silent on this confusion in official thinking. Is a new pandemic syrup to be promoted by the power handlers?

Thank heavens that the Cabinet Minister of Health, Pavithra Wanniarachchi, is so far silent on this matter. She could come up with a new Sri Lankan Deshamanya scientific solution, such as throwing some of the Sinopharm and Sputnik (Chinese and Russian) into the nearby river, and using the mixed and river blended vaccine for people of the related province. She is sure to obtain the support of Ministers Udaya Gammanpila and Prasanna Ranatunga for such a crafty thinking of science, just as they shared her belief in the Charmed Pot Game or Mantara Kala Keliya to fight the Covid-19.

  We are now in the midst of what is known as a Lockdown. It is not a “Vasaa thabeema” in Sinhala, but a limit on travel – a ‘Sancharana Seemava’. The Police are very clear that anyone who breaks the lockdown rules will be arrested and brought to justice. We have seen the great joy that policemen showed in carrying non-mask wearers and other violaters of Covid safety guidelines, to be shoved into buses. How much more of such delights would follow when Covid increases its hold on Sri Lanka? What was the related Task Force, and its ceremonial uniformed head doing, when Indians were brought to Sri Lankan hotels for quarantine before travel to some Middle Easter countries? What foreigner from the Covid battered India was carried or courteously conducted to a place where lawbreakers are detained?

As we keep wearing our masks and distancing ourselves from others, there is much cause for concern, even beyond the Covid pandemic, on how persons arrested and detained by the police are killed by or in the presence of the  police. Two suspected and arrested persons have been killed while in police custody this week.  They are Melon Mabula or ‘Uru Juva’ and Tharaka Perera Wijesekera or ‘Kosgoda Tharaka’ These are persons with records of major crimes, possibly with much strong evidence, but not presented in court and any punishment order through the judicial process.

The police spokesperson, a person with a legal background, too, tells the people the details of all the terrible crimes these persons are supposed to be guilty of. It is a contemptible move to get public support for the killings. The Bar Association has raised concerns about these departures from justice. There must be much more protests, even with the Covid dangers.

One gets the impression that the prevailing dangerous situation due to Covid, is being used to carry out increasing violations of the law and the judicial process. This is certainly a major step back to the earlier years of Rajapaksa Power, when many such suspects were killed in Colombo and elsewhere, showing off police escape power. It also brings back memories of the killing and attacks on journalists by similar police and official forces of crooked power.

Are we moving to a new sense of Dual Power — where the judiciary is ignored and official power is the Rule of the Day? Is the power of Dual Citizenry to be the dominant force once Covid puts down the people’s power?

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Should ASEAN Free Trade Area be considered model for SAFTA?

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By Dr. Srimal Fernando

Economic integration is more important today than it has ever been for South Asia’s development. When comparing the impact of South Asian Association for Regional Cooperation (SAARC)s South Asian Free Trade Area (SAFTA) and the Association of Southeast Asian Nations (ASEAN ) Free Trade Area (AFTA) in promoting trade amongst its member states, AFTA has been more effective in integrating the economies of its member states. SAFTA , on the other hand, has yet to make significant contributions to the integration of the economies of SAARC member states. The Success of ASEAN’s economic integration can be attributed to the willingness of Southeast Asian countries to embrace the tenets of regional integration. In contrast, SAARC’s model has failed to create a secure regional environment that is conducive for economic growth since its formation.

The Association of Southeast Asian Nations (ASEAN ) member states signed the AFTA agreement on 28 January 1992. After the establishment of AFTA, the member states of ASEAN succeeded in signing trading protocols within the organization. The ASEAN model succeeded in creating one of the most successful free trade areas in Asia as well as globally. The establishment of AFTA has been an important milestone in Southeast Asia as a factor that facilitated the economic integration of ASEAN member states.

In the case of the SAARC, the signing of free trade protocols under the SAFTA agreement has been faced with several tariff and non-tariff barriers. Although both SASRC and ASEAN member states face unique challenges that affect trading within these organizations, it can be said that, unlike the SAARC, the ASEAN economic integration model has been far successful in promoting trade amongst its member states. For the SAARC, the liberalization of the economies of SAFTA signatories has been a crucial challenge. On the other hand, ASEAN has made notable progress with regards to trade liberalization, policy alignments, and intra-regional trade among Southeast Asian nations.

The specific trade liberalization challenges faced by the SAARC member states include concerns over SAFTA revenue allocation from member states, restrictive rules of origin, and negative sensitive lists. The sensitive lists adopted by SAARC member states have proven to be a significant hurdle to exportation amongst SAARC member states. This has particularly made it difficult for exports from small member states of the SAARC to enter into large markets such as India and Pakistan. Having failed to grant the application of  most favored nation (MFN) status that would have seen a significant reduction in the sensitive lists maintained by both countries, trade between these two regional powers has been problematic over the years. Notably, the trading commodities that are in the sensitive lists of a majority of the SAFTA member states have high export potential. Despite the various commitments made by SAFTA member states, countries continue to maintain long sensitive lists hence the dismal performance of SAFTA. 

In the case of ASEAN, the establishment of the AFTA agreement has provided ASEAN member states with a platform to exploit their export potential. The AFTA agreement has boosted the economies of ASEAN countries through its trade liberalization policies. AFTA has also entered into several free trade agreements with regional powers such as Australia, China, South Korea, India, and Japan. The ASEAN countries are now focused on creating an Economic Community for their member states. Notably, several countries have shown interest in being a part of the proposed ASEAN Economic Community.

It should however be noted that the massive success achieved by ASEAN’S AFTA as opposed to SAARC’s SAFTA is not flawless. For example, although ASEAN has made significant steps in eliminating tariff barriers amongst AFTA member states, Non-tariff barriers are still a key challenge to the AFTA agreement. However, when analyzing the progress made by ASEAN’s AFTA since its formation, the achievements and evolution are undeniable. ASEAN was formed in an era when interstate relations amongst Southeast Asian countries were characterized by political mistrust and strained interstate relations. Years later, the organization has succeeded in unifying its member states for a common course, an aspect that the SAARC still struggles with. 

Way Forward

If SAFTA is to become more effective and emulate AFTA’s success, the myriad of issues mentioned above needs to be addressed. First, downsizing the sensitive lists of countries in a time-bound manner will be necessary. Secondly, the issue of para tariffs needs to be squarely addressed. A starting point could be to reduce and accelerate the elimination of para tariffs on items not on sensitive lists and include para tariffs in SAFTA negotiations. Also, the non-tariff barriers to trade facing SAFTA member states need to be equally addressed like the tariff barriers. Finally, strengthening economic relations can be used to reinforce improving political relations in the region, particularly between India and Pakistan. To an extent, the success of ASEAN in achieving effective economic integration and its experience can be used as an external driver of SAARC and its SAFTA agreement.

About the author:

Dr. Srimal Fernando received his PhD in the area of International Affairs. He was the recipient of the prestigious O.P. Jindal Doctoral Fellowship and SAU Scholarship under the SAARC umbrella. He is also an Advisor/Global Editor of Diplomatic Society for South Africa in partnership with Diplomatic World Institute (Brussels). He has received accolades such as 2018/2019 ‘Best Journalist of the Year’ in South Africa, (GCA) Media Award for 2016 and the Indian Council of World Affairs (ICWA) accolade. He is the author of ‘Politics, Economics and Connectivity: In Search of South Asian Union’

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Ramazan spirit endures amid pandemic

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This will be a sombre Ramazan, indeed, with the country under a lockdown. But the spirit of Ramazan lives on in all Muslims. Ramadan, also referred to as Ramazan, Ramzan, or Ramadhan, in some countries, is the ninth month of the Islamic calendar, and Muslims the world over dedicate this holy month for fasting, prayer, reflection and community.

Although most non-Muslims associate Ramazan, solely with fasting, it is believed to bring Muslims closer to God and inculcate in them qualities such as patience, spirituality, and humility. Those of the Islamic faith believe that fasting redirects one away from worldly activities, cleanses the inner soul and free it from harm. It also teaches self-discipline, self-control, sacrifice, and empathy for those who are less fortunate and encourage actions of generosity and charity. It is a time of self-examination and increased religious devotion.

Ramazan is a commemoration of Prophet Muhammad’s first revelation, and the annual observance of Ramazan is regarded as one of the Five Pillars of Islam. The Five Pillars are basic acts, considered mandatory by Muslims, namely Muslim life, prayer, concern for the needy, self-purification, and the pilgrimage. Prophet Muhammad’s first revelation is believed to have taken place in 610 AD, in a cave called Hira, located near Mecca, where Muhammad was visited by the angel Jibrīl, who revealed to him the beginnings of what would later become the Qur’an. The visitation occurred on Ramazan.

Ramazan lasts from one sighting of the crescent moon to the next and the local religious authority is tasked with announcing the date. The Colombo Grand Mosque announced on Wednesday (12) that Sri Lankan Muslims will celebrate Ramazan on Friday (14). Because the Muslims follow a lunar calendar, the start of Ramazan moves backwards by about 11 days, each year, in the Gregorian calendar. Fasting from dawn to sunset is considered fard (obligatory) for all adult Muslims who are not acutely, or chronically, ill, travelling, elderly, breastfeeding, diabetic, or menstruating.

During this month, Muslims refrain not only from partaking of meals, but also tobacco products, sexual relations, and sinful behaviour, devoting themselves to prayer or salat and recitation of the Quran. The pre-dawn meal is referred to as suhur, and the nightly feast that breaks fast is referred to as iftar. During Ramazan, Muslims wake up well before dawn to eat the pre-dawn meal. This is considered the most important meal, during Ramazan, since it has to sustain one until sunset. This means eating lots of high-protein food and drinking as much water as possible, right up until dawn, after which one cannot eat or drink anything. The day of fasting ends at sunset, the exact minute of which is signalled by the fourth call to prayer, at dusk.

It is believed that spiritual rewards, or thawab, of fasting multiply during Ramazan. Muslims do not Fast on Eid, but Sri Lankan Muslims believe that observing the six days of optional fasting, that follows Eid, multiplies spiritual rewards.

Eid-Ul-Fitr is the Festival of Breaking the Fast, also simply referred to as Eid, and marks the end of the month-long dawn-to-sunset fasting of Ramadan, as well as the return to a more natural disposition of eating, drinking, and marital intimacy. In Sri Lanka, this Festival of Breaking the Fast is also referred to, colloquially, as Ramazan. Eid begins at sunset, on the night of the first sighting of the crescent moon. Muslims hand out money, to the poor and needy, as an obligatory act of charity, before performing the Eid prayer.

Globally, the Eid prayer is generally performed in open areas, like fields, community centres, or mosques in congregation. In Sri Lanka, the prayer is performed annually in Galle Face Green and mosques. The Eid prayer is followed by the sermon and then a supplication asking for Allah’s forgiveness, mercy, peace and blessings for all living beings across the world. The sermon encourages Muslims to engage in the rituals of Eid, such as zakat, almsgiving to other fellow Muslims. After the prayers, Muslims visit relatives, friends, and acquaintances, or hold large communal celebrations.

After prayer, Muslims celebrate Eid, with food being the central theme. Sri Lankans celebrate Ramazan with watalappam, falooda, samosa, gulab jamun and other national and regional dishes. The festivals were said to have initiated in Medina, after the migration of Muhammad from Mecca.

This year, as well as last year, Sri Lankan Muslims will have to forgo the custom of communal prayers, and celebrations, due to the ongoing pandemic, and will have to settle for private prayers and celebrations of Ramazan during this period of curfew. While these preventive measures are in place, during this year’s Ramazan, the principles of this holy month remain the same. Devout Muslims all over the world, will still be honouring this pillar of Islam, albeit from the security of their homes.

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