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This week a Ministry of Defense website published a report in which a group of lawyers were referred to as “traitors” for filing fundamental rights applications before the Supreme Court on behalf of alleged members of the Liberation Tigers of Tamil Eelam.
Courts are supposed to serve everyone and lawyers can defend anyone, including the devil. Lawyers defend murderers, rapists, politicians facing corruption charges and torturers. In the International Criminal Court people are tried for mass murders, war crimes and crimes against humanity, yet they are all entitled to defense attorneys.
When Adolf Hitler’s collaborators were charged at Nuremburg they had the right to legal representation. A conspirator in the 9/11 tragedy was brought to trial in the United States and represented by U.S. lawyers. Legal firms have come forward to defend prisoners held at the Guantanamo Bay detention camp.
Candidates contesting the recent U.S. presidential election had promised to close down Guantanamo Bay and bring the prisoners to the United States, even amid objections from opponents who argue that this would give alleged terrorists the same legal rights as those enjoyed by Americans. President-elect Barack Obama has indicated this will be one of his top priorities.
In Sri Lanka, officers from the armed forces who plotted a coup in 1962 to overthrow the elected government were given full legal rights, beginning with their arrest till their appeals at the Privy Council. Leaders of the People's Liberation Front indicted for the 1971 rebellion did not have as many rights as the coup leaders, as their case was tried not before a court but before a special commission. However, their lawyers were allowed to appear, and the eminent Queen’s Counsel S. Nadesan, prominent lawyer Bala Tanpoe, and many other lawyers appeared for the alleged insurgents.
Until the 1980s lawyers represented LTTE members and other Tamil militants brought to trial in high courts, including the Tamil leader S. Yogachandran, known as Kuttimuni, in 1982-83. The list of such cases would cover many pages.
When the United National Party charged the current president, Mahinda Rajapaksa, and others from the Sri Lanka Freedom Party for allegedly trying to overthrow the government in the 1980s, they were represented by lawyers. When the government of J.R. Jayewardene charged actor Vijaya Kumaranatunga of being a Naxalite in 1982, lawyers represented him.
These facts expose the absurdity of trying to raise propaganda against lawyers for representing their clients, whoever they may be. Ironically, the Defense Ministry report and the threatening letter by the Mahason Balakaya group are identical in their message and content.
To attack a lawyer for his professional work is to attack the legal profession as a whole. Expecting a lawyer not to appear for a terrorist is like asking a surgeon not to operate on a terrorist who needs medical care.
An attack on lawyers is an attack on the Bar Association of Sri Lanka. In a recent resolution following the throwing of two grenades into a lawyer’s house, the Bar Association passed a lengthy resolution vowing serious retaliation against any further attacks.
Since the Defense Ministry report constitutes an attack against lawyers, how will the Bar Association retaliate? Some leaders of the association are known to be close to the regime. The lawyers must decide whether they will defend this uncivilized act by the regime or whether the association will defend the lawyers concerned.
Of course, these days it is difficult to judge what is an official website, what is an official report and what is an official comment by the government. The Defense Ministry website is not a government gazette. If it were, the government could be taken to task, as was done recently when an attempt was made to extend the retirement age of some government officers, which the Supreme Court threatened to annul. However, government websites are used as private media channels where people can publish whatever they like.
It is a problem however if such publications threaten people’s lives. When former President Chandrika Kumaratunge made a televised comment against a United National Party member of Parliament, the U.N. Human Rights Committee held that the statement constituted a threat to the person’s life and a violation of his human rights. The Defense Ministry publication threatens the lives of individuals and lawyers in general, and therefore constitutes a criminal act.
There is nothing to stop a government if it wants to be barbaric. Some tribes have allowed the bodies of their enemies to be cannibalized, pushing enmity to the extreme. The Sri Lankan government is using a similar type of psychology.
Obviously the target is not just terrorists but society as a whole. Today, more than at any other time in Sri Lanka’s history, the state is terrorizing the middle class through various publicity stunts.
The Defense Ministry publication and the Mahason Balakaya letter foreshadow more terrible things to come. Those who ignore such signals do so at their peril.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia. His blog can be read at http://srilanka-lawlessness.com.)
