2. SIGNIFICANCE OF DEPROFESSIONALIZATION
The doctrine of deprofessionalization was initially reflected in efforts to restrain the powers of the officials in courts of law, which since independence continued to assert its autonomous power to determine judicial controversies without any external interference, to pronounce upon the validity of arbitrary actions of the executive,83 and even to invalidate unconstitutional legislation.84The exercise of such awesome power by non-elective tribunals, which seemingly obstructed the process of social and economic transformations on “technical” and “legalistic” grounds, was found to be particularly irksome to members of the socialist coalition.85 It was thought to be especially reprehensible and inconsistent with the nationalistic aspirations of political sovereignty when such power was exercised by a foreign tribunal, such as the Privy Council, which stood at the apex of the multi-tiered pyramidal court structure.
Accordingly, one of the early legal reforms implemented by the government was to abolish the appellate jurisdiction of the Privy Council and to vest it in a National Court of Appeal.86 Consistent with the coalition's desire to weaken the judicial arm of the government and correspondingly concentrate power in the legislative, was its decision to eliminate the “non-elective” second chamber, an essential component of “Parliament” as defined by the previous Constitution.87 One of the more fundamental postulates of this New Constitution of 1972 is that which by rejecting the prevailing conceptions of separation of power, attempts to restructure the allocation of powers between the different organs of government. Section 4 of the Constitution of Sri Lanka provides “that the Sovereignty of People is exercised through the National State Assembly of the elected representatives of the people’, and that the “National State Assembly is the supreme instrument of state power of the Republic.” In effect it means that the panoply of state power would be vested in a tribunal which is primarily a legislative institution, the National State Assembly being the lineal successor to the House of Representatives under the previous constitution.88And to further remove any doubt on this issue the Constitution adds that while the legislative power would be exclusively exercised by the National State Assembly, the executive and judicial power would be exercised on its behalf by the cabinet and courts of law respectively. Section 5 therefore provides that “the National State Assembly exercises:(a) the legislative power of the people;
(b) the executive power of the people... through the President and the Cabinet Ministers; and
(c) the judicial power of the people through courts and other institutions created by law....”
There were other steps taken by government to weaken the jurisdiction and authority of the courts of law, and to further compound its subordination to the National State Assembly. The Constitution explicitly took away from the courts the power to inquire into or pronounce upon the validity of any legislation.89Instead, a Constitutional Court was established as an appendage to the legislature and to advise the latter on the constitutionality of legislative proposals and to enable the legislature to cure any defects by adopting a special procedure to enact the law90 (see Sects. 54 & 55 of the Constitution of Sri Lanka, 1972). Similarly an Amendment to the Interpretation Ordinance severely restricted the grounds on which the Superior Courts of law could, through the issue of the prerogative writs, inquire into the validity of the executive acts of the government.91 This legislation, which was subjected to considerable criticism by the national press, the Bar Council, and several trade-union groups, was defended by the Minister as “an attempt to restrain the court from assuming the role of the legislature” (see Parliamentarian53 (1972): 240).
Apart from the subordination and circumscription of the powers of the courts of law, deprofessionalization was also reflected in the continuing effort to constitute popular and quasi-popular tribunals with exclusive or concurrent jurisdiction over disputes which were normally handled by the regular courts of law (see Tiruchelvam, 1971). The constitution of such tribunals has important implications for the legal profession, since their enabling legislation often placed restrictions on the involvement of lawyers as either judges or as advocates of the interests of parties.
The government even considered extending this policy to tribunals which had been constituted in the pre-1970 period. One such example would be the labour tribunals where, although the original Industrial Disputes Act in 1957 conferred on licensed practitioners an equal right of representation with trade-union officials, employer's representatives and other para-professionals,92 the government gave serious consideration to totally excluding licensed practitioners from such proceedings. Such a step would deprive several younger members of the profession of an extremely important source of income. Fiscal policies such as the imposition of a ceiling on income had the indirect effect of limiting the legal fees chargeable by lawyers and other professionals (supra Note 75). The general economic depression and the resulting decline in commerce and land transactions further eroded the economic base of the profession.93The process of deprofessionalization we have sketched above was accelerated by a continuing confrontation between the government and the profession. Some law professionals perceiving certain tensions between the liberal and socialist components of the state's ideology, deeply believed that it was the special responsibility of the profession to ensure that the former was not consumed by the latter. They correspondingly mobilized several members of the academic community, journalists, trade unionists, and other professionals to form a Civil Rights Movement to combat potential encroachments by the state on the civil liberties of the people. The successive efforts of the government to enact the Criminal Justices Act, the Interpretation (Amendment) Act, the Press Council Act, and the Lake House Acquisition Bill became the focal points of controversy between the Civil Rights Movement and the socialist coalition. The lawyers dominated the Civil Rights Movement, considering such legislative proposals to be in derogation of the civil liberties and the fundamental freedoms guaranteed by the Constitution, and launched a public campaign through the national press against the enactment of such legislation.
The Movement and other individuals even had recourse to the Constitutional Court to impugn the validity of these legislative attempts.94 We have already alluded to the fact that the socialists in the government had for a long time a negative view of the profession for its persistent opposition to legal reforms and its general indifference towards the legal needs of the poor. The involvement of several prominent law professionals, some of whom had in the past actively supported the socialist parties, in the campaign to obstruct what the government regarded as “progressive legislation,” exposed the legal profession to further attack and criticism for being antagonistic to the aspirations of the working classes and the rural peasantry.95There are two other developments that we should refer to in this respect. Firstly, although the state has recently taken several steps to undermine the monopoly of the legal profession over lawrelated services, it has left undisturbed the authority of the courts of law to guarantee the most sacred right of the people in a pluralistic society, that of constituting their government at pre-determined intervals through an independent electoral process. Stringent election laws vest in the election judges a wide range of sanctions against candidates, their agents and supporters to ensure the legality and the fairness of both the campaign and the voting during Parliamentary Elections.96 Their powers include the authority to impose the most severe sanction of invalidating the election of a candidate guilty of corrupt practices, such as impersonation, treating, undue influence and bribery. The Constitution of Sri Lanka both reiterated the most basic right of the people to elect their representative to the National State Assembly,97 and left intact the responsibilities and the powers of the courts of law to safeguard the independence and the freedom of the electoral process.98
Secondly, unlike some other societies subjected to similar ideological changes (see Ziadeh, 1968), the state has done very little towards interfering with the autonomy of the professional organizations.
Internal divisions and power struggles within the General Council of Advocates have, however, considerably undermined the cohesiveness and the unity of the bar and weakened its ability to protect the interests of the profession. The more reform-oriented groups in the advocates association, frustrated by their failure to dethrone conservative senior practitioners from dominant positions in the governing council, seceded from the parent body to form a rival organization. Once it became clear, however, that the left-wing groups could gain control over the parent body, the two units were fused. The Advocates Association continues to be plagued by intense factionalism, which often has ideological overtones. Curiously however these pressures did not affect the Law Society, the professional organ of the proctors.”It is important to note that deprofessionalization of law-jobs is just one manifestation of the participatory ideology of the socialist government.100 From this perspective it is clearly related to the debureaucratization trend in the administrative sphere. N. M. Perera, the Finance Minister and perhaps the most articulate doctrinaire socialist in the cabinet, emphasized that the latter was a novel social experiment by which existing forms of bureaucratic management would give way to socialist forms of management (Budget Speech 1970–71: 13). The objective he said was to establish mass organizations which would vest the people with some responsibility for “the formulation of plans and their implementation; for efficiency in management, for the curbing of profiteering and the suppression of corruption” (ibid.). The new institutional forms which were established to give expression to these goals were the People's Committees,101 the Workers Advisory Council and the elected Employee Councils (ibid.: 13). Germane to these developments were the attempts to create Divisional Developmental Councils to decentralize the planning process (ibid.: 199; Budget Speech, 1971–72: 199), and the promise to reorganize the armed forces and the police “to identify them with the national and progressive aspirations of the people” (Parliamentarian, 51 (1970): 311).
The ultimate goals of these institutional forms was the creation of a worker-managed economy with the “Workers Councils being the training ground of the future worker-managers” (Budget Speech, 1970–71: 13).The fundamental importance of popular participation to the socialist developmental strategy of the government was repeatedly stressed by Minister Perera. While explaining the difficulties the government could face in implementing its programme, Perera pointed out, “A mass upheaval such as we have witnessed in many East European countries, in China and in North Korea would have in a sense simplified the task of socialist reconstruction. A revolutionary mass upheaval teaches lessons to the masses in the very process of that upheaval. It awakens people to a high degree of social consciousness. We, on the other hand, are conditioned by an environment charged with old prejudices, old inhibitions and old traditions” (ibid.: 4). To overcome these obstacles it was important to mobilize the whole of the society and “raise its social consciousness on a coherent ideological appeal, that of socialism” (Budget Speech, 1971–72: 222). Popular participation at all levels of government as a means of enhancing the popular consciousness assumes, then, a critical significance in a society such as Sri Lanka which had not emerged out of a protracted revolutionary struggle. The working class must recognize, Perera added, that “the struggle to emancipate ourselves from capitalism cannot be accomplished without their assistance and active co-operation”.102
As the legal ideology of the socialist coalition continued to take shape, it became increasingly important to accommodate the Conciliation Boards scheme within its framework. Policy statements of the government began to rationalize the conciliatory scheme as one of the principal planks of the governmental programme of deprofessionalization, and as being consistent with its broad participatory ideology. To the extent that lawyers were excluded from appointment as conciliators103 and from the representation of disputants before such tribunals, the reform had to a very significant extent facilitated popular participation in the management of inter-personal conflict. The successful disposition by these Boards of almost half the controversies that were directed to them was found to have a negative impact on the volume of cases handled by the regular courts of law104 which in turn adversely affected the practice of the legal profession. The new effort to integrate the Conciliation Boards scheme into the socialist ideology of the government is manifested in the principle of state policy in The New Constitution which provides that the, “State shall strengthen and broaden the democratic structure of Government... by affording all possible opportunities to the people to participate at every level in national life and in government, including the civil administration and the administration of justice”105 (italics mine).
The government's decision to enhance the powers of the Conciliation Boards and to vest in such tribunals the jurisdiction of the Rural Courts is consistent with the Socialist conception of these Institutions.106 For the impact of such a reform would be to vest coercive powers in such tribunals and qualitatively transform these from conciliatory bodies to popular “courts of law.”
One consequence of such a transformation would be to blast the revivalists’ imagery of these boards as the lineal descendants of the traditional Gamsabhavas (village council). The socialist coalition in initiating such changes appeared in turn to show less concern for conserving the Conciliation Boards’ links with historical antecedents than with manipulating these institutions to be responsive to the social needs and the developmental problems of contemporary Sri Lanka. Correspondingly the government decided to further restructure the Conciliation Boards to enable them to deal with the problems of “indebtedness that hang so heavily on the rural folk”.107