• BASL Prez Kaushalya Nawaratne notes the need for SL’s legal system to be updated through new laws and removal of archaic laws to compete with global and professional developments 

The legal profession in Sri Lanka is in need of considerable improvements in line with global developments in the profession. While Sri Lanka’s legal community too is striving to embrace the necessary changes, particularly in terms of enacting new laws and amending existing ones to meet modern-day requirements, it is simultaneously endeavouring to fulfil its duties to the country, including safeguarding the people’s rights, within the confines of the existing frameworks.

In light of this, Bar Association of Sri Lanka (BASL) President Kaushalya Nawaratne explained that the legal profession’s unique and crucial role needs to be further improved and that in that endeavour, steps such as improving legal education in the country play a decisive role in the long run. During an interview with The Daily Morning, he discussed the nature of and challenges faced by Sri Lanka’s legal profession.

The following are excerpts from the interview:

On a number of occasions in the recent past, lawyers came under fire for appearing for suspects who were believed by the general society to be criminals or suspects who were involved in controversial cases. Many, especially on social media, opined that lawyers should not appear for such suspects. What is your opinion about a lawyer’s discretion to represent a client?

When a client wants legal representation before a court of law, they can always come to a lawyer. In terms of our professional ethics, lawyers cannot choose clients. There may however be situations where a lawyer might, subject to certain conditions, refuse to appear for a client. It could be due to conflicts of interest or the case not being the lawyer’s speciality. Depending on their area of practice, they can always say they do not handle that specific part of the work, and that therefore, it is better for the client to retain another legal practitioner who has the knowledge and experience in those respective fields. 

For instance, if I am a practitioner in the field of civil law and a client approaches me with a criminal issue, you cannot expect me to appear for the client. These are instances where a lawyer can refuse to accept a case. Otherwise, a lawyer cannot refuse to appear for a client in terms of our professional ethics. You can always mention the reasons. For example, you cannot represent a client if there is a conflict of interest. These are accepted, established legal norms, and lawyers are well entitled to utilise them.

For the most part, a lawyer’s decision to represent a certain client or suspect is judged by the allegations against the suspect. Does a lawyer take into account those allegations when accepting a case?

No. Every person is entitled to be heard and represented before a court and is considered innocent until proven guilty. That is a well-established legal principle. There is no question about it just because allegations have been made, and just because the client is a suspect, even if within a popular context.

Is there a code of ethics for lawyers?

We certainly have one. We are governed by and are subject to those ethics. These ethics have been accepted by the Supreme Court as well. If one is found to have violated it, penal sanctions would be imposed against them.

What are your thoughts about legal education in Sri Lanka? In what ways can and should it be improved?

There are improvements to be done, and it is not only a matter of one or two legal subjects. That is why I say that as legal professionals, we are required to embrace new developments and introduce new laws to the country to fall in line with new requirements. For instance, look at the MV X-Press Pearl vessel incident, which was disastrous to our marine environment. It was only following that incident that we realised we did not have a sufficient legal system in the country to deal with something like it and the cases have now been filed in Singapore. These are areas in which we have to improve. The existing system and our potential can be improved. It is just that we have to bring about new legislation and proposals within a very short period of time. If we do it, our future will be a good one.

There was a concerning situation recently regarding the use of the English language for exams at the Sri Lanka Law College. While some supported the idea of improving the use of English, there was certain opposition as well. What are your thoughts in this regard?

English is one of the prime requirements for a better legal system in the future. If someone wants to pursue a legal education and climb up the ladder as a legal professional, proficiency in the language is a must. Like all legal literature, 99.9% of any area of law is written in English, unless to interact with other jurisdictions (that use English less). So, it is important for you to improve your proficiency in the English language. 

Sri Lanka is going through an era of changes. What are the legal or policy changes that the legal community, as a group of professionals, would like to see in the country?

This is one of the main things we are looking into. When looking at our country and in terms of the laws that we have at the moment, we feel that the laws have to be revamped. There are certain outdated laws that we need to get rid of in order to fall in line with present-day demands. If you look at different jurisdictions outside Sri Lanka, you will see that they have improved significantly. They have brought in different dispute-resolution mechanisms and new laws. 

We live in a global village, and the requirements and transactions of communities have become extremely complex. New laws must come in. At the same time, we cannot live in isolation. We have to interact with the rest of the world. The duty of introducing new laws is the responsibility of legislators. But, of course, we also have certain responsibilities as a legal community. We are currently in the process of proposing new legal amendments and determining the areas in which new laws have to be introduced. We have also taken up certain responsibilities in this regard.

What do you think about the future of the legal profession in Sri Lanka and what changes do you think should be made?

With the changes that are happening in the world or in other jurisdictions, we have to be competitive. There is always potential for us to improve, including in terms of our knowledge and the application of modern technology; there is a lot more to be done. That is why we always say that we should pay attention to digitisation, the introduction of new laws, and bringing amendments to the existing laws. All these things are being proposed and discussed in order to meet present-day demands. 

The BASL intends to carry out a lot of programmes to safeguard the rights of citizens. If you find any authorities attempting to violate and interfere with the rights of the people, the BASL will certainly not tolerate it. At the same time, we will take every possible step to protect the independence of the judiciary as well. We find that in the recent past, many things were said and done in certain domains, especially in Parliament, under the guise of parliamentary privileges. So, these are matters which we will discuss, including in terms of what steps need to be taken to protect the integrity of the legal profession – including those of the members of the judiciary. It is very unprofessional and unwarranted for Parliamentarians to pass comments inside Parliament to which no one has the right to reply. That is something I will take a very firm stance on.