Posted by: aslluk | July 26, 2011

Legal Aid in Sri Lanka

http://cebainsrilanka.blogspot.com/
A blog by Mr. James Potts who is researching Legal Aid in Sri Lanka. His research is sponsored by the Commonwealth in England Barristers’Association (CEBA) and organised by Mr. Fritz Kodagoda.

22nd May 2010 at Garden Court Chambers, London.

I believe that this association of lawyers can do much good in the years to come, in becoming relevant to our community in the UK and doing more for Sri Lanka. In striving to create a Sri Lankan unity based on mutual respect, we will reflect the rich cultural diversity of Sri Lanka. As lawyers if we oppose injustice and fight for equality, social justice, human and environmental rights then we will truly serve Sri Lanka in the future. I say do not be afraid. We can be a model for others.

I am grateful to all those involved in organising the 2010 AGM of the Association of Sri Lankan Lawyers and the preceding CPD Seminar on “Access to the Legal Profession”. In particular may I thank Surya Samaraweera, Anoosha Boralessa, Shaun Neville, Upali Jayatilaka and Wasantha Tennakoon.

May we express our congratulations to Mr. Lee Karu QC on taking silk.

May we also remember Mr. Upali Cooray, the left-wing political activist and Sri Lankan lawyer, although never an ASLLUK member, who spent his life fighting for the rights of workers and minorities and empowering the exploited.

EXECUTIVE COMMITTEE

May I thank those who are the majority of Executive Committee members, who have regularly attended and actively participated in the six Executive Committee meeting last year.

Members of the Executive Committee are the leaders of this association. Every one of us can and must provide leadership.

The composition of the Executive Committee is vital, as it is the heart and soul of this organisation.

People should be willing to participate and serve not merely have their names as “nominal” members. There is no point in having permanently absent and inactive members.

There are twenty nine Executive Committee members but it is inexplicable that some members have rarely attended and some have never attended a single meeting. It is wholly unacceptable for anyone on the Executive Committee to not pay their membership subscriptions. Every one of us should be Life Members.

The Executive Committee must be a vibrant, representative and inclusive body. We needed to recruit from younger members of the legal profession, in particular women and Tamils and other minorities from Sri Lanka. Younger people must stand and be promoted.

What we need is an injection of new people, creative energy, regular attendance at meetings and delegation of responsibility.

It is important that the Executive Committee meetings are organised and conducted efficiently, and start on time and end on time. For this to happen, it is vital that the arrangement of the Executive Committee meetings is delegated to one person, namely, the General Secretary.

Incidentally, we have supported the Sri Lankan community by patronising Sri Lankan restaurants by holding Executive Committee meetings at Galle Kade, Prince of Ceylon and Elephant Walk.

SUB COMMITTEES:

We need active participation in the work of the Sub-Committees.

1. Continuing education programme:

The CPD courses are important as one of the objects of the association was to “Promote the welfare and interests of all Sri Lankan Lawyers in the UK with the object of enabling all members to develop their professional work and conduct to meet current levels of competence and efficiency”.

This activity is vital for our professional development; it is beneficial to all members as it provides necessary CPD points, it introduces potential members to our professional work and it is a valuable source of funds; £2000 was raised last year, which enabled us to provide such things as Law College scholarships. For example:-

1. AGM – 10/5/09 – £27.50
2. Criminal course – 30/5/09 – £677.24p
3. Immigration course 6/6/09 – £964.69p
4. Immigration course 28/6/09 – £571.86p.

It also provides valuable CPD points for all solicitors and barristers at extremely good economic cost.

It is therefore important that all Executive Committee members participate and contribute something. Poor attendance by ASLLUK members and their staff at extremely good Immigration Law courses is inexplicable.

2. Solicitors Professional Indemnity Insurance.

We have regularly met to discuss the serious concerns raised by members that small firms and ethnic minority were being targeted and put out of business; that this amounted to indirect discrimination; that a small cartel approved by the Law Society was controlling the provision of Solicitors Professional Indemnity Insurance.

A delegation had met the President of the Law Society. It was felt that we cannot allow the Law Society to take this issue forward; that we needed to challenge the Law Society; and that we needed to unite with other firms, the Society of Asian lawyers and the Black Solicitor Network around this issue, so as to avoid victimisation.

A Solicitors Professional Indemnity Insurance Committee was nominated to compile a list of solicitors who have been affected; formulate a questionnaire; obtain a data base of solicitors firms who are prepared to unite with us and take it forward; and contact the Bar Equality Committee and the Bar Council.

3. Human Rights

As democratic lawyers we believe in many things: the practice of democracy; the independence and protection of the judiciary and the legal profession; the rule of law for all; the maintenance of peace; cooperation between nations; environment protection but foremost is the defence of democratic rights and liberties.

We have attended various Human Rights meetings in London, notably the Bar Human Rights Committee meeting on Sri Lanka at Garden Court Chambers on 16th June 2009, and the International Bar Association Human Rights Institute meeting at the Law Society 25th June 2009, where the issue of Human Rights in Sri Lanka was debated. By our participation, we have supported the rights of citizens in Sri Lanka, but have also challenged misinformation and propaganda.

4. Fundraising for the Internally Displaced Persons:

Throughout the last year we have discussed and response to the humanitarian tragedy affecting 275,000 “Internally displaced persons” citizens in Sri Lanka. An immediate donation of £1,000 was made and subsequently funds were raised and £1400 donated to the Artificial Limbs Project.

They still need a lot of assistance including trauma counseling.

5. Post Conflict Reconciliation:

There has been a continuous discussion about how the Association could contribute to peace and reconciliation in Sri Lanka.

The first ASLLUK Journal will be on “Peace, Reconciliation and Reconstruction.”

We must translate that belief in democratic rights and liberties by raising funds for artificial limbs for the victims of that war. The fact is there are many thousands of civilians and combatants who are now crippled. They have democratic rights. They too have the right to liberty. Let us not forget them. When we speak of peace and reconciliation it means looking after all of these injured people whether they are Sinhala, Tamil or Muslim and giving them a future.

6. Law College scholarships:

We now provide scholarships for poor students at the Law College, Colombo.

We are supporting 25 students; Rs. 50000 will be paid towards exam fees. We will be supporting poor Sinhalese, Tamil and Muslim students who would otherwise have severe difficulty in going to Law College. We can do more to support more students and in particular Tamil students who are at this time are under-represented in the Law College.

7. LAW MEDICAL

1. Law Medical Cricket Match. We soundly defeated the Medics in 2009, and must train again for match on the 17th July 2010 at the Harrow School Ground.

2. Law Medical Dinner Dance 2009. This was a successful event thanks to the Dinner Dance Committee. This event could however never have happened, as there were sceptics within the Ex Co who voted against it. We therefore thank those within the Ex Co who resurrected the debate at the following meeting, and guaranteed to underwrite the expenses involved. This year we must ensure that the Dance Committee arranges a souvenir and budgets for a profit by actively fundraising on behalf of our charitable activities.

3. We supported the visiting Sri Lankan Lawyers Cricket Team as they participated in the Lawyers World Cup, by playing a match against them in Cambridge and subsequently hosting a dinner at the Prince of Ceylon.

8. CHARITABLE

The 5th Tsunami Reception on 27th November 2009 was an enjoyable celebration of peace, reconciliation and unity in Sri Lanka.

The auction of the Tsunami painting, commissioned especially for this occasion and donated by the artist Kirti de Kauwe, raised £590. Three prints were also sold for £25 each. We have so far raised a £1530 profit to assist victims of the Sri Lankan civil war who need artificial limbs.

Although there was a limited turnout of Sri Lankan lawyers, almost 100 people attended.

CONCLUSION

1. It is important to celebrate what we have achieved in the past year.
2. We must have a clear programme of action for next year.
3. We need to have greater participation and leadership provided, by Office Bearers and the Executive Committee members in the work of the Sub Committees. Without their experience, we cannot be as effective as we should be.
4. The creation of two new Sub Committees, namely an Immigration Law Sub Committee and a Criminal Law Sub Committee, to reflect the areas of practice of our members, many of whom are very distinguished lawyers.
5. The next year is going to be challenging for us all but we need to work together and move forward.

Lalith de Kauwe.

General Secretary

ASLLUK.

Posted by: aslluk | February 18, 2011

R W M ‘Mickey’ Dias QC (Hon)

 
R W M ‘Mickey’ Dias QC (Hon)

(TH 1939 Law)

1921–2009

R W M ‘Mickey’ Dias, QC (Hon), died on 17 November 2009 aged 88. As an author of leading works on jurisprudence and the law of tort he will be remembered for his outstanding contribution to the law in the second half of the 20th century. However, hundreds of his former pupils will remember him most for the clarity of his teaching, for his dry and peculiarly macabre sense of humour and for his selfless devotion to extracting the very best from each and every one of them.

Mickey Dias was born in Colombo, Ceylon, on 3 March 1921, into the leading Sinhalese family of Dias Bandaranaike. His grandfather, Felix Reginald Dias Bandaranaike, was the first Asian admitted to Trinity Hall and Mickey was the third direct generation of his family to read law here.

One of his contemporaries was Peter Oliver, later Lord Oliver of Aylmerton, with whom he forged a lifelong friendship and who in due course became his best man. However, while Peter deferred his studies after his first year in order to join up, Mickey considered it his duty to his father to complete his degree and LLB, that being the express purpose for his sojourn in Cambridge. This he did with distinction, taking a starred first class in all three years of the Law Tripos, another in the LLB in 1943, and winning the George Long Prizes for Jurisprudence and Roman Law amongst others. During this time, he also served in the Home Guard and represented the University against Oxford at tennis in all four years.

On completing the LLB, and contrary to the explicit instructions of his father, he secretly determined not to return to Ceylon as intended, but instead volunteered for war service as a rear gunner in the RAF. His enraged father promptly cut him off ‘with a shilling’ – partly due to his abhorrence of the fact that Mickey had worked as a mortuary assistant at Addenbrooke’s Hospital while waiting to be called up, thereby deliberately breaking a rigid caste taboo. This radical gesture was later annulled but only through the extreme exertions of Mickey’s stepmother.

During the war, Mickey was assigned to Coastal Command, where he escorted Artic Convoys and was involved in the search for the Tirpitz. While serving, he studied for his Bar exams by correspondence course and was called to the Bar by the Inner Temple in 1945. When the war ended, he was posted to Chivenor in Devon as part of the EVT Unit where he met Norah Hunter Crabb, then serving in the WAAF, whom he married in 1947. Following demobilisation, he returned to Cambridge, where he supervised in Law for Trinity Hall.

In 1949, he was appointed to a lectureship by the University College of Wales, Aberystwyth, a position he held for two years before returning to Cambridge following his appointment in 1951 as a University Lecturer in Law. He continued to supervise extensively from Trinity Hall until elected by Magdalene College as their first Law Fellow in 1955, a college which from thence onward he served with great devotion and distinction, holding office as President from 1988 to 1991.

Within the University also he took on significant responsibilities, serving as secretary to the Faculty Board of Law, as a member of the General Board and the Council of the Senate, and as Senior Proctor 1987–88. He was also Patron of the Ceylon Law Society and for a while – inexplicably – President of the University Badminton Club.

His teaching and research were mainly in the fields of Roman law, jurisprudence and the law of tort. He will best be remembered for Dias on Jurisprudence, and his work as editor (from 1961) and, subsequently, general editor (from 1975 to 1995) of the leading practitioners’ work Clerk and Lindsell on Torts, with particular responsibility for the fine chapters on negligence.

There is no doubt that his success at Cambridge was in very large part due to his wife, Norah. Her untimely death in 1980 in an air crash in Zimbabwe where she had accompanied him on one of his regular annual visits as External Examiner to the University of Salisbury robbed him of an irreplaceable and vital force in his life and was a blow from which, despite outwards appearances, he never recovered.

Mickey Dias was a man of integrity and uncompromising principles.   He was reticent about his own considerable achievements, wearing neither his war-service medals, nor his Hawks Club tie. Nor did he refer to having played tennis at Wimbledon for the RAF. He was, however, extremely proud to have been elected an honorary bencher of the Inner Temple in 1992 and appointed an honorary silk in 2002. As far as he was concerned, his greatest fulfilment lay in his teaching, and the affection in which he was held by generations of his pupils was impressively and most publicly manifested in an 80th birthday dinner hosted by his college in the Inner Temple and attended by over two hundred of his former Magdalene pupils, including the current Lord Chief Justice, Lord Judge and the Chancellor of the High Court, Sir Andrew Morritt.

Provided by his daughter, Julia Dias QC (TH 1978)

Posted by: aslluk | September 15, 2010

The ECHR’s ‘realistic’ ruling on unlawful detention


Thursday 26 February 2009 by Joshua Rozenberg

Judgments involving Abu Qatada are a bit like buses: you wait ages for one to turn up and then two come along together.

Last Wednesday, the home secretary won her appeal to the House of Lords against a ruling that the radical Muslim cleric could not be deported to stand trial in Jordan. That struck me as a wise ruling by the law lords, and one that you might think the Daily Mail would have reported prominently.

Instead, under the headline ‘Preacher of Hate Hits the Jackpot’, the newspaper splashed on Thursday with the news that Abu Qatada and ten other suspected foreign terrorists were ‘in line for “crazy” compensation payments’ from the taxpayer. Readers were left with the impression that the European Court of Human Rights (ECHR) would award each of the former detainees a ‘fortune’ worth hundreds of thousands of pounds.

The Mail is much admired by other papers, which rushed to follow its lead. So when Abu Qatada was awarded less than £2,500 – and the other 10 detainees were given sums ranging from nearly £3,500 to nothing at all – the story received much less coverage than it deserved. Perhaps that was what the Home Office – which had presumably briefed the home affairs editor at the Mail – had wanted all along.

What was interesting about last week’s ruling was the deference shown by the Strasbourg judges to the law lords’ decision of December 2004 – the famous ‘Belmarsh’ judgment that declared the indefinite detention of suspected foreign terrorists incompatible with human rights.

Dismissing the detainees’ claim that detaining them breached the ban on inhuman and degrading treatment in article 3 of the convention, the Strasbourg judges found that the men could challenge both their detention and the conditions under which they were held. This was in line with a finding by the Special Immigration Appeals Commission (SIAC), Britain’s anti-terrorist court, which the law lords had not questioned.

The ECHR also followed the law lords’ rather reluctant conclusion that, a couple of months after terrorists attacked the US on 11 September 2001, there was a ‘public emergency’ in Britain ‘threatening the life of the nation’. It is only if such an emergency exists that states may ‘derogate from’, or refuse, rights such as article 5(1), which protects liberty.

I was never convinced that the ‘life of the nation’ was threatened at that time. Neither was Lord Bingham, the senior law lord. Nor, famously, was Lord Hoffmann, who said the ‘real threat’ came from ‘laws such as these’. But most of the law lords were prepared to accept that such an emergency existed and the Strasbourg judges did not contradict them.

That, in itself, is not enough. States can derogate in times of emergency ‘only to the extent strictly required by the exigencies of the situation’. The law lords found that the derogating measures went too far in discriminating against foreign nationals. It followed that there had been a breach of article 5(1). Last week, the European judges gratefully agreed.

The ECHR went further in finding some breaches of article 5(4), the right to have the lawfulness of one’s detention decided by a court. This was because detainees had not been given enough information about the allegations against them to challenge these allegations effectively.

That part of the ruling was seen by the campaign group Justice as casting doubt on the special advocate procedure, under which security-cleared lawyers make submissions on behalf of detainees with whom they cannot communicate. Next week, a special panel of nine law lords will consider whether the use of special advocates in control order proceedings is consistent with article 6, the right to a fair trial. Control orders – ‘gag and tag’ restrictions – replaced detention without trial in 2005.

Article 5(5) provides an enforceable right to compensation for unlawful detention. This could not be awarded by the law lords since their powers were limited to declaring English law incompatible with article 5, as indeed they did. Basing their claims on decided cases, detainees who had been held for the full three-and-a-quarter years sought up to £240,000. Abu Qatada, who had evaded arrest for nearly a year, claimed nearly £175,000.

But the Strasbourg court had a great deal of sympathy for Britain’s attempts to reconcile the need for public protection with its obligation not to send people to countries where they risked torture. If the suspects had not been detained, they might still have been subjected to other restrictions – as they subsequently were when control orders were introduced. These reasons, said the court, justified ‘substantially lower’ compensation than would otherwise have been awarded.

It was a refreshingly realistic ruling from the ECHR. The men were clearly entitled to some recompense for their unlawful detention. But there was no need to pay them any more than what another of the detainees, Abu Rideh, dismissed as ‘rubbish money’.

The law lords’ decision last week allowing Abu Qatada to stand trial in Jordan was equally realistic. As I wrote in a column for the Gazette in May last year, there comes a time when our judges should stop trying to police other countries’ courts. I would be surprised if the Strasbourg court blocks Abu Qatada’s deportation or even delays it for too long.

And I’m not the only one who thinks that instant attacks on the law lords’ ruling by Amnesty International, Human Rights Watch, Justice and the Guardian were ‘misconceived and unfair’. That’s also the view of Lord Lester QC, the father of human rights law in Britain. The tide is turning, and not just in Strasbourg.

Date Published: 23-07-2010

The Law Society has today announced the transfer of the Solicitors Indemnity Fund (SIF) run-off claims handling function from Legal & Professional Claims Ltd (LPClaims) to Vision Underwriting Limited (Vision). Vision is a wholly-owned subsidiary of Liberty Mutual Insurance Europe Limited (LMIE) and a member company of Liberty Mutual Group.

This step secures an economic and viable long term solution for the handling of the run-off of SIF claims, a task which is expected to take another ten years to complete on an ever declining basis. Outsourcing claims handling creates cost efficiencies for the Solicitors Indemnity Fund and for the solicitors’ profession which funds it. Under the arrangements, control of the SIF and its indemnity arrangements will remain firmly within the Law Society Group as at present.

Vision has also today announced its intention to offer solicitors’ professional indemnity insurance. Vision intends to market to firms of up to 5 partners in size, both on a direct basis and through the internet.

The Law Society welcomes the arrival of Vision as bringing new capacity, competition and more choice into this market. Vision will be trading online under the title of Legal and Professional Insurance (www.LPinsure.co.uk).

The current LPClaims staff of eight, including the Chief Executive George Raubenheimer, will transfer to Vision.

Desmond Hudson, Chief Executive of the Law Society said:

“The Law Society has secured an excellent result for the profession, which secures the viability of the handling of SIF run-off claims at a reasonable cost and at a time when we are working hard to keep to a minimum the overheads on solicitors. I am delighted that we have been able to reach agreement with Vision Underwriting Limited and that I am also able to welcome the arrival of another insurer for solicitors.”

Paul Kurgo, LMIE’s Managing Director Commercial Business UK and Ireland said:

“This is an exciting opportunity for Vision as it enters a sector of the solicitors market currently experiencing a growing concern about the availability of a competitive market place. I am also pleased that we have been able to secure a professional and highly experienced claims team that has been recognised for the quality of its management of solicitors claims, developed over many years. We aim to build upon this reputation with firms knowing that their claims are in the right hands”.

George Raubenheimer, CEO LPClaims said:

“Solicitor firms of 1 to 5 partners will recognise the value, benefits and stability of combining the very best of SIF claims management with that of a large internationally recognised insurer. The profession will have comfort knowing that the run-off of the remainder of the SIF claims will continue to be dealt with professionally and to the highest standards.”

Ends

Notes for editors

The commercial terms of the deal between the Law Society and Vision Underwriting Limited will remain confidential.

About Vision Underwriting Limited

Vision Underwriting Limited, a wholly owned member company of Liberty Mutual Group (LMG), is a Cheltenham-based specialist in professional indemnity, legal expenses, directors’ and officers’ liability, casualty and property insurance.

About Liberty Mutual Insurance Europe Limited (LMIE)

Liberty Mutual Insurance Europe (www.liueurope.com) is a wholly owned subsidiary of global insurer Liberty Mutual Group and trades under the Liberty International Underwriters (LIU) name.

About Liberty Mutual Group

Boston-based Liberty Mutual Group is a diversified global insurer and fifth largest property and casualty insurer in the U.S. based on 2008 direct written premium. The Company also ranks 71st on the Fortune 500 list of largest corporations in the U.S. based on 2008 revenue. As of December 31, 2009, Liberty Mutual Group had $109.5 billion in consolidated assets, $95.0 billion in consolidated liabilities, and $31.1 billion in annual consolidated revenue.

Liberty Mutual Group offers a wide range of insurance products and services, including personal automobile, homeowners, workers compensation, commercial multiple peril, commercial automobile, general liability, global specialty, group disability, assumed reinsurance, fire, and surety.

Liberty Mutual Group (http://www.libertymutualgroup.com) employs over 45,000 people in more than 900 offices throughout the world.

Journalists please call Melissa Davis in the Law Society press office on 020 73205811

Posted by: aslluk | July 6, 2010

Obituary Notice

Desmond Fernando PC, senior SL counsel & one time President of Int Bar Assoc passed away on 5th July 2010.

Posted by: aslluk | June 2, 2010

The history of the Attorney General’s Department

Tuesday, June 1, 2010

Article written by the Asian human rights commission

(June 01, Hong Kong, Sri Lanka Guardian) These days a topic for public discussion is the takeover of the Attorney General’s Department by the President of Sri Lanka.

A discussion on this issue will benefit from reflections on the history and the functions of the Attorney General’s Department. We reproduce below a speech made by the then Solicitor General, Mr. K.M.M.E Kaluntunga, who later became a Supreme Court judge on the occasion of the 100th anniversary of the Attorney General’s Department which was celebrated in 1984. On that occasion a Conference of Attorneys General (Asia Pacific Region) was held as part of the commemoration. Three papers were presented. We give below the first paper presented to this conference.

Has the tradition which was celebrated on that day now come to an end? This is perhaps what is feared by many in terms of the recent developments relating to this department.

PRESENTATION OF MR. K.M.M.E. KULATUNGA, SOLICITOR-GENERAL OF SRI LANKA

Mr. Chairman, distinguished delegates, let me introduce my paper. In this conference we are concerned with the Office of the chief Legal Advisor to the Government. He represents the Government in criminal prosecutions and in civil litigation. In a particular country he may be designated the Attorney-General. Elsewhere the legal advisor may be the Minister of Justice or the Secretary to that Ministry. He may be a Cabinet Minister and designated the Attorney-General.

Alternatively he may be designated the Public Prosecutor. He may change with the Government or he may be a public servant who does not change with the Government.

However, I believe that in every country there is one thing which is common, namely, that the duties of the Chief Legal Advisor to the Government are of judicial or quasi judicial nature and that he is in the position of a guardian of the public interests.

Distinguished delegates, on the occasion of the centenary of the Attorney-General’s Department in Sri Lanka, we are happy to meet you and to learn more about the different systems you represent, for the common good and mutual benefit. That is the object.

In Sri Lanka, the Office of the Chief Legal Advisor to the Government was designated the Attorney-General in the year 1884. In the earlier part of the 19th century it was designated Queen’s Advocate or King’s Advocate.

From 1833 to 1931 the King’s Advocate or the Queen’s Advocate and thereafter the Attorney-General was a member of the Executive Council and official members of the Legislative Council and functioned as an advisor to the Governor. He also introduced government measures in the Legislative Council. That was his role in those days.

In 1931 under the Donoughmore Constitution an Officer called the Legal Secretary an Officer of state replaced the Attorney-General in. the Legislature.

The Legal Secretary and the Attorney General advised the Governor under that Constitution. The Attorney-General and the Solicitor-General with nine Crown Counsel handled Criminal Prosecutions and Civil matters. It is matter of interest that somewhere around the year 1958 the cadre of the Attorney-General’s Department increased to at about 20 – 28 and it is now 80 – 90, which reflects the increase of the volume of work.

In 1946 the Soulbury Constitution established a Minister of Justice. The Attorney-General and the Solicitor-General remained public servants. The Soulbury Commissioners observed thus:

“In recommending the establishment of a Ministry of Justice we intend no more than to secure that a Minister shall be responsible for the administrative side of legal business, for obtaining from the Legislature financial provisions for the administration of justice, and for answering in the Legislature on matters arising out of it. There can, of course be no question of the Minister of Justice having any power of interference in or control over the performance of any judicial or quasi—judicial function, or the institution or supervision of prosecutions.”

As regards advice to the Governor-General there was no question of the Minister of Justice having any power of interference in or control over the performance of any judicial or quasi—judicial function, or the institution or supervision of prosecutions.

As regards advice to the Governor-General in the exercise of the Royal Prerogative of Pardon the Commissioners suggested that this should be the responsibility of the Minister of Justice. The Commissioners added that:

“In view of the ease with which the duty of advising the Governor-General in these matters might be turned to political ends, we would express the hope that the Minister would hesitate to tender to the Governor-General advice contrary to the recommendation he had received from the Attorney-General, the Permanent Secretary and other non-political advisers.”

Sri Lanka attained independence in the year 1948. In 1972 she became a -Republic and adopted a new Constitution. – And another Constitution was enacted for the Republic in 1978.

It is observed that none of the Constitutions adopted since l946 altered the non-political status of the Attorney-General and the Solicitor-General. The Attorney-General continued to be the Chief Law Officer of the State. His independence and the status remained unaffected. However, his functions increased under the 1972 Constitution as well as 1978 Constitution.

In the U.K. in 1912 the Attorney-General was appointed a Cabinet Minister This of course lead to some criticism on the ground that the duel status of the Attorney-General impinged on his independence. However, successive Attorneys-General in the U.K. have asserted that it is their duty to give independent advice and to safeguard the public interests. In Sri Lanka the question did not arise in that way, but during the colonial period criticism was levelled against the Attorney-General in particular cases, on the ground that he had acted under pressure or for political reasons. That indicates the vigilance exercised in that matter by the members of the public as well as members of the Bar.

In modern times, in every sphere of his functions the Attorney-General is both the legal advisor to the Government and a guardian of public interests.

In criminal, prosecutions his functions are quasi judicial. His officers are enjoined to ensure that the verdict is fair and according to law.

In civil matters he advises the Government and appears for the Government. He arranges for relief to the claimants administratively in appropriate cases. He promotes settlement of disputes between government departments and the public in appropriate cases. He also entertains petitions from the public and arranges for redress administratively in appropriate cases.

He examines draft legislation for unconstitutionality especially for inconsistency with fundamental rights and freedom. He appears before the Supreme Court in cases where breaches of fundamental rights are alleged. His right to be heard in the Supreme Court in such and other proceedings is designed to safeguard the interests of the State as well as the public.

He appears in contempt of court proceedings and in disciplinary proceedings against Attorneys-at-Law and assists the Court to reach a decision consistent with the relevant principles of law and the right of litigants as the case may be.

In applications for the issue of prerogative writs it is his duty to ensure that the correct decision is given after balancing the rights of the State and the public.

The most important powers of the Attorney-General are judicial or quasi-judicial. In the exercise of these powers he must act objectively and impartially between the State and the Subject.

In criminal trials his only interest is that the verdict should be in accordance with the law. His officers have been advised to express no views on the punishment to be imposed on an accused who has been found guilty unless the Court invites assistance on that question.

In advising the government, he has to form his opinion after considering the legal principles as well as the practical effect of his advice. This does not mean that his advice should besides being correct be somehow favourable to the government. Thus, where any question in respect of which his advice is sought has arisen out of political controversy or has political overtones, his opinion should be objective and fair to the parties affected. No doubt he must have due regard to the desire of any government to realise its legitimate aspirations and the political problems Ministers have to contend with. However, it is his duty to advise the government to act within the law in implementing its policies.

No government will lightly disregard the opinion of the Attorney-General and advise itself wrongly. If it did so, that would lead to wrong decisions which would in turn discredit it in the public eye. It may thus be true to say that in a particular situation the stability of the government may itself depend on the correctness of the opinion tendered by the Attorney-General. As such he will not rest his advice on more expediency.

Mr. Chairman, distinguished delegates, I thank you for granting me the privilege of introducing this paper and the patient hearing you have given me. Thank you.

22nd May 2010 at Garden Court Chambers, London.

I believe that this association of lawyers can do much good in the years to come, in becoming relevant to our community in the UK and doing more for Sri Lanka. In striving to create a Sri Lankan unity based on mutual respect, we will reflect the rich cultural diversity of Sri Lanka. As lawyers if we oppose injustice and fight for equality, social justice, human and environmental rights then we will truly serve Sri Lanka in the future. I say do not be afraid. We can be a model for others.

I am grateful to all those involved in organising the 2010 AGM of the Association of Sri Lankan Lawyers and the preceding CPD Seminar on “Access to the Legal Profession”. In particular may I thank Surya Samaraweera, Anoosha Boralessa, Shaun Neville, Upali Jayatilaka and Wasantha Tennakoon.

May we express our congratulations to Mr. Lee Karu QC on taking silk.

May we also remember Mr. Upali Cooray, the left-wing political activist and Sri Lankan lawyer, although never an ASLLUK member, who spent his life fighting for the rights of workers and minorities and empowering the exploited.

EXECUTIVE COMMITTEE

May I thank those who are the majority of Executive Committee members, who have regularly attended and actively participated in the six Executive Committee meeting last year.

Members of the Executive Committee are the leaders of this association. Every one of us can and must provide leadership.

The composition of the Executive Committee is vital, as it is the heart and soul of this organisation.

People should be willing to participate and serve not merely have their names as “nominal” members. There is no point in having permanently absent and inactive members.

There are twenty nine Executive Committee members but it is inexplicable that some members have rarely attended and some have never attended a single meeting. It is wholly unacceptable for anyone on the Executive Committee to not pay their membership subscriptions. Every one of us should be Life Members.

The Executive Committee must be a vibrant, representative and inclusive body. We needed to recruit from younger members of the legal profession, in particular women and Tamils and other minorities from Sri Lanka. Younger people must stand and be promoted.

What we need is an injection of new people, creative energy, regular attendance at meetings and delegation of responsibility.

It is important that the Executive Committee meetings are organised and conducted efficiently, and start on time and end on time. For this to happen, it is vital that the arrangement of the Executive Committee meetings is delegated to one person, namely, the General Secretary.

Incidentally, we have supported the Sri Lankan community by patronising Sri Lankan restaurants by holding Executive Committee meetings at Galle Kade, Prince of Ceylon and Elephant Walk.

SUB COMMITTEES:

We need active participation in the work of the Sub-Committees.

1. Continuing education programme:

The CPD courses are important as one of the objects of the association was to “Promote the welfare and interests of all Sri Lankan Lawyers in the UK with the object of enabling all members to develop their professional work and conduct to meet current levels of competence and efficiency”.

This activity is vital for our professional development; it is beneficial to all members as it provides necessary CPD points, it introduces potential members to our professional work and it is a valuable source of funds; £2000 was raised last year, which enabled us to provide such things as Law College scholarships. For example:-

1. AGM – 10/5/09 – £27.50
2. Criminal course – 30/5/09 – £677.24p
3. Immigration course 6/6/09 – £964.69p
4. Immigration course 28/6/09 – £571.86p.

It also provides valuable CPD points for all solicitors and barristers at extremely good economic cost.

It is therefore important that all Executive Committee members participate and contribute something. Poor attendance by ASLLUK members and their staff at extremely good Immigration Law courses is inexplicable.

2. Solicitors Professional Indemnity Insurance.

We have regularly met to discuss the serious concerns raised by members that small firms and ethnic minority were being targeted and put out of business; that this amounted to indirect discrimination; that a small cartel approved by the Law Society was controlling the provision of Solicitors Professional Indemnity Insurance.

A delegation had met the President of the Law Society. It was felt that we cannot allow the Law Society to take this issue forward; that we needed to challenge the Law Society; and that we needed to unite with other firms, the Society of Asian lawyers and the Black Solicitor Network around this issue, so as to avoid victimisation.

A Solicitors Professional Indemnity Insurance Committee was nominated to compile a list of solicitors who have been affected; formulate a questionnaire; obtain a data base of solicitors firms who are prepared to unite with us and take it forward; and contact the Bar Equality Committee and the Bar Council.

3. Human Rights

As democratic lawyers we believe in many things: the practice of democracy; the independence and protection of the judiciary and the legal profession; the rule of law for all; the maintenance of peace; cooperation between nations; environment protection but foremost is the defence of democratic rights and liberties.

We have attended various Human Rights meetings in London, notably the Bar Human Rights Committee meeting on Sri Lanka at Garden Court Chambers on 16th June 2009, and the International Bar Association Human Rights Institute meeting at the Law Society 25th June 2009, where the issue of Human Rights in Sri Lanka was debated. By our participation, we have supported the rights of citizens in Sri Lanka, but have also challenged misinformation and propaganda.

4. Fundraising for the Internally Displaced Persons:

Throughout the last year we have discussed and response to the humanitarian tragedy affecting 275,000 “Internally displaced persons” citizens in Sri Lanka. An immediate donation of £1,000 was made and subsequently funds were raised and £1400 donated to the Artificial Limbs Project.

They still need a lot of assistance including trauma counseling.

5. Post Conflict Reconciliation:

There has been a continuous discussion about how the Association could contribute to peace and reconciliation in Sri Lanka.

The first ASLLUK Journal will be on “Peace, Reconciliation and Reconstruction.”

We must translate that belief in democratic rights and liberties by raising funds for artificial limbs for the victims of that war. The fact is there are many thousands of civilians and combatants who are now crippled. They have democratic rights. They too have the right to liberty. Let us not forget them. When we speak of peace and reconciliation it means looking after all of these injured people whether they are Sinhala, Tamil or Muslim and giving them a future.

6. Law College scholarships:

We now provide scholarships for poor students at the Law College, Colombo.

We are supporting 25 students; Rs. 50000 will be paid towards exam fees. We will be supporting poor Sinhalese, Tamil and Muslim students who would otherwise have severe difficulty in going to Law College. We can do more to support more students and in particular Tamil students particularly who are at this time under-represented in the Law College.

7. LAW MEDICAL

1. Law Medical Cricket Match. We soundly defeated the Medics in 2009, and must train again for match on the 17th July 2010 at the Harrow School Ground.

2. Law Medical Dinner Dance 2009. This was a successful event thanks to the Dinner Dance Committee. This event could however never have happened, as there were sceptics within the Ex Co who voted against it. We therefore thank those within the Ex Co who resurrected the debate at the following meeting, and guaranteed to underwrite the expenses involved. This year we must ensure that the Dance Committee arranges a souvenir and budgets for a profit by actively fundraising on behalf of our charitable activities.

3. We supported the visiting Sri Lankan Lawyers Cricket Team as they participated in the Lawyers World Cup, by playing a match against them in Cambridge and subsequently hosting a dinner at the Prince of Ceylon.

8. CHARITABLE

The 5th Tsunami Reception on 27th November 2009 was an enjoyable celebration of peace, reconciliation and unity in Sri Lanka.

The auction of the Tsunami painting, commissioned especially for this occasion and donated by the artist Kirti de Kauwe, raised £590. Three prints were also sold for £25 each. We have so far raised a £1530 profit to assist victims of the Sri Lankan civil war who need artificial limbs.

Although there was a limited turnout of Sri Lankan lawyers, almost 100 people attended.

CONCLUSION

1. It is important to celebrate what we have achieved in the past year.
2. We must have a clear programme of action for next year.
3. We need have greater participation and leadership provided, by Office Bearers and the Executive Committee members in the work of the Sub Committees. Without their experience, we cannot be as effective as we should be.
4. The creation of two new Sub Committees, namely an Immigration Law Sub Committee and a Criminal Law Sub Committee, to reflect the areas of practice of our members, many of whom are very distinguished lawyers.
5. The next year is going to be challenging for us all but we need to work together and move forward.

Lalith de Kauwe.

General Secretary

ASLLUK.

COUNCIL OF LEGAL EDUCATION – SRI LANKA

RULE NO. 51

Any person who has either been duly called to the Bar or duly admitted as a Solicitor in England & Wales, Scotland or Ireland and who has satisfied the requirements as to Sinhala/Tamil Language in Rule 23(I) (E) may be admitted and enrolled an Attorney-at-Law of the Supreme Court provided that –

(a) he passes the examination for Attorneys-at-Law students in the following subjects, viz :-

(i) Civil procedure, Pleadings and Law of Executors and Administrators
(ii) Law of Property
(iii) Tax Law
(iv) Industrial Law

Commercial Law 1 (A Barrister shall be exempted from examination in this subject if he has passed in it at the Examination for Call to the Bar).

having previously paid the normal examination fee for these subjects payable by an Attorney-at-Law student at the Law College; and in the case of a person called to the Bar on or after 1st June 1965, he attends, before or after passing the said examination, for a period of six months the Chamber of an Attorney-at-Law of eight years standing and also attends, before or after passing the said examination, the Practical Training Course provided for in Rule 36 for an Attorney-at-Law student who has passed the Final Examination. Provided however, that if a person called to the Bar in England on or after 1st June 1965, has served a period of pupillage in England under a practising Barrister for not less than six months or has undergone a Practical Training Course established by the English Council of Legal Education for not less than six months he shall be exempted, upon documentary proof thereof, from attending chambers and attending the Practical Training Course as aforesaid.

(b) he applies to the Supreme Court for admission as an Attorney-at-Law and fulfils the requirements prescribed by Rule 37 and produces documentary proof of his call to the Bar in England, Scotland or Ireland, together with an affidavit that he is the person named in the said documents, and that he has not done or committed any act or thing rendering him liable to de disbarred;

and

© the Registrar of the Supreme Court reports that the applicant is of good repute and that there exists no impediments or objection to his admission and enrolment.

51. A. Upon every application for enrolment made to the Supreme Court it may make such order as it may deem proper.

Admission requirements for Barristers

The documents which should be submitted with the application for admission to the Sri Lanka Law College by persons who are Barristers:-

1. Original Called to the Bar Certificate with a photo-copy;

2. Original L.L.B. Degree Certificate with a photo-copy;

3. Original G.C.E. (O/L) Certificate in proof of credit pass in Sinhala/Tamil Language with a photo-copy;

4. One Character Certificate with a photo-copy;

5. Original Birth Certificate with a photo-copy;

6. Two (2) coloured photographs (Passport size-one should be certified by the person issuing the Character Certificate);

7. One photo-copy of the National Identity Card.

8. Fee payable:

Admission Fee -Rs.700.00
Students’ Union Fee -Rs. 50.00
Confirmation of Education Certificates
with relevant authorities
-Rs. 750.00
Cost of Students’ Identity Card -Rs.500.00
Cost of Handouts -Rs. 2000.00
Utility Fee -Rs.1000.00
Library Membership -Rs. 2000.00
Total -Rs. 7000.00

For those who did not attend the AGM of the Association of SL Lawyers in the UK last Saturday (22nd May 2010), they may not know the relevancy of this article.

We discussed and noted at the AGM that only Barristers are exempt from the 3 year course at SL Law College in Colombo, before they can qualify as Attorneys-at-Law. The exemptions therefore do not apply to UK Solicitors, who are required to follow the full 3 year course at SL Law College and pass the three examinations. Upali has set out above the criteria set out by the Council of Legal Education in SL.

Pursuant to the AGM ‘acceptance’ to take this matter forward, I believe the UK SL Lawyers Ex-Co should discuss this matter at its next meeting next month, and make representations to the Chair and Members of the Council of Legal Education in SL, as well as to the Ministry of Justice, the Attorney-General etc. Your comments and observations are appreciated. I would appreciate if any one of you can let me know the names of anyone in particular, that we should be contacting, if necessary meeting in Colombo. Also, the names and addresses and email addresses of those who are currently on the Council of Legal Education in SL would be welcome.

Thank you.

Rohan de Alwis,

Chairman of the Executive Committee,

Association of SL Lawyers in the U.K.

Those of you who have clients from the DRC with pending asylum claims/appeals, with fresh claims, in detention and/or facing deportation may be interested to learn that we have managed to get the Treasury Solicitors/UKBA to concede a substantive Judicial Review case before the Royal Courts of Justice at the 11th hour based (largely) on the general country situation in that country. Including, in particular:
i) Guardian Newspaper article entitled ‘Returned asylum seekers claim they have been tortured in Congo’ dated 28th May 2009 by Diane Taylor (available online), supplemented by a statement from the latter setting out the specifics of her investigations/findings dated 3rd March 2009 and a further statement filling in the gap by me (based on discussions, exchange of emails with Ms. Taylor between 3rd March 2009 and now – essentially, taking apart a rebuttal letter produced by the Charge de Affaires at the British Embassy in Kinshasa dated June 2009 criticising Ms. Taylor’s findings, and, further stating that there is evidence to suggest arrest and detention of returnees on arrival in Kinshasa persists) dated 14th May 2010; and,

ii) An expert opinion on the return of failed asylum seekers to DRC by an expert the Tribunal regards as the foremost authority on DRC (Mr. Erik Kennes , who was involved in the current Country Guidelines Case, BK) and finds, broadly, that, although there is no evidence to suggest wholesale targeting of returned asylum seekers on arrival per se, there is evidence of returnees being targeted, arrested and detained – in conditions that violate Article 3 – for the purpose of extorting money from them by the immigration officials manning the entry desk (this money, apparently, then going to their own pockets and their superiors etc.).

To this background, I do not think the UKBA’s policy on returning asylum-seekers is sustainable, and all removal cases should be challenged until the UKBA/Treasury Solicitors allow for the issue to be considered substantively [note, however: there is a further substantive case being brought by Migration Justice due to be heard this week, which, on the face of it, appears to be a little tougher to win than ours, that might change this stance … watch this space].

In any event, do let me know if you have any cases that may benefit and/or if you want the contact details of any of the above-named individuals.

Regards,

Dinu Senadheera
Solicitor & Fellow of ILEX

this article is also published in the Immigration Forum

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