The reply sent by the Bar Association of Sri Lanka [BASL] to Lakshan Dias is embarrassing.
Faced with a belligerent Ministerial threat to disenroll him Dias had emailed Amal Randeniya, the Secretary – BASL seeking assistance. Randeniya’s reply was to ask Dias to forward ‘an affidavit with all the facts pertaining to the matter’. The first point of embarrassment is the wording of the response itself. Lawyers wrangle about the specifics for a living yet, Randeniya chooses to be vague. After all there are several ‘matters’ here. They are;
The threat made by Minister Rajapakse.
The matter regarding the statement made by Lakshan Dias with regard to the attacks on Christians and their churches.
On both matters an affidavit is unnecessary and the request ridiculous. Why does the Bar Council need an affidavit on the threat [point (a)] as Minister Rajapakse has not denied it? In widely publicised statements Rajapakse has in fact confirmed it.
The other ‘matter’ is with regard to the attacks itself. This is even worse. How and why should Dias give an affidavit on the attacks? He never said he has personal knowledge of these incidents. He is relying on a report by the National Christian Evangelical Alliance of Sri Lanka [NCEASL]. The report was forwarded to Randeniya and tabled at the Bar Council meeting. So when he has no personal knowledge and when he never said he had personal knowledge to ask for an affidavit is absurd.
Every good lawyer knows the fundamental rule of evidence that a person can state by affidavit only what he knows from his personal knowledge. Information he receives from a third party [like the NCEASL report] is what lawyers call ‘hearsay’ evidence’. Hearsay cannot be included in an affidavit. Randeniya, the rest of the BASL Executive Committee and the Bar Council ought to read the judgments in Gunasinghe Banda v Navinna  3 Sri L R 207 and Seneviratne v Dharmaratne  1 Sri L R 76 on this point.
So the BASL response is embarrassing because it is technically bad. It is an example of very bad lawyering. For after all what is the Bar Council going to do with the affidavit? Does it plan to cross examine Dias?
In the range of responses available to the Minister of Buddha Sasana, threatening a lawyer with disenrollment is the worst of its kind. It’s the nuclear option. It is an overreaction. The fact of the Minister threatening legal consequences to someone for a statement made on a talk show is itself problematic. It raises questions about the Minister’s own fitness and ability to function as a policy maker. These threats discourage other lawyers from taking on and speaking about unpopular causes. Even if you eventually win the case against you, the fact is you have to suffer through it. This is not how free and fair societies function.
The BASL should stand up for the freedom of lawyers to act without having to look over their shoulder for overreacting bullies. The BASL must protect this freedom for it is because lawyers have spoken and fought for unpopular causes that we enjoy the rights and freedoms we enjoy today. The legal profession is the profession of Abraham Lincoln, Mahathma Gandhi and Nelson Mandela. Impeachments and disenrollments are the hallmarks of tyranny and dictatorship. Rajapakse’s bullying was unacceptable and it should have been condemned. The BASL side stepping is embarrassing and unfortunate. It is a small-minded response having failed to see the bigger picture.