BASL fights hard to thwart invasion of SL legal system by American Bar Association
(Courtesy of The Island)
The Bar Association of Sri Lanka (BASL) has strongly objected to repeated attempts by the American Bar Association (ABA) to establish a branch here since January 2018 ostensibly to be monitored by the Justice Ministry and the Attorney General’s Department.
The clout of the ABA even without a foothold here has been such that in October 2018 the Attorney General in a communique titled, “Official Letter of Authorization for the Establishment of a Branch office of the ABA in Sri Lanka” sent to the Ministry of Justice, stated that the ABA had undertaken to conduct a capacity building programme for judges and prosecutors.
In the same month, the BASL wrote to the Ministry of Justice that it “does not see any need to register a Branch Association of the ABA in Sri Lanka”.
The BASL has pointed out that neither the Ministry nor the Attorney General’s Department represents the legal community and that it is the largest and the sole representative body recognised under the Sri Lankan legal system as the body representing the legal profession.
“Nowhere in the world will a legal system allow or permit a foreign Bar Association to set up a branch office”, the BASL has said.
Later, the ABA had through a local legal firm requested for assistance from the Ministry of Justice to issue a letter to register the ABA here as an NGO.
This request is viewed by the BASL as an indirect means of establishing ABA presence in Sri Lanka “knowing very well that the application for registration as a branch association would fail”.
BASL Secretary Kaushalya Nawaratne has, in a letter to the National Secretariat for Non-Governmental Organisations, has warned that unlike in the case of an ordinary NGO, the application in this instance has a serious impact on the legal profession and the very concept of sovereignty.
Following is the full text of the letter sent by the BASL Secretary:
The attention of the Bar Association of Sri Lanka (BASL) has been invited to a series of correspondence relating to an application made to your office for the purpose of registering the American Bar Association of Sri Lanka (ABA) as a Non-Governmental Organization (NGO).
In this regard we wish to make the following observations;
1. The BASL is fully aware that since January 2018 there had been attempts to register a Branch Association of the ABA in Sri Lanka. The request originated in January 2018 on the basis that it would be in the interests of the ABA to set up a Branch office in Sri Lanka.
It was also stated that the activities of the Branch would be monitored by the Ministry of Justice and the Attorney General’s Department.
2. A further letter dated 23rd January 2018 conveys the impression that the ABA intends to extend their charitable international programme titled “Rule of Law Initiative” to Sri Lanka.
3. Subsequently, the ABA had, through a local legal firm requested for assistance from the Ministry of Justice, to issue a letter to you to register the ABA as a NGO. This request was referred by the Ministry to the BASL which submitted its observations in April 2018.
Even though the original request was to register a Branch Association, subsequently, it had been changed to the registration of a NGO.
4. It is relevant to note that none of the above correspondence was directly addressed to the BASL. All correspondence in this regard were submitted by the Ministry of Justice.
5. In October 2018, the Hon. Attorney General addressed a communication to the Ministry of Justice stating that the ABA has undertaken to hold a capacity building programme for Judges and Prosecutors. The Hon. Attorney General had also requested the Ministry to issue a certificate for the limited purpose of the above programme.
It is interesting to note that even though the said letter of the Hon. Attorney General refers to the abovesaid programme in the body of the letter, the heading of the letter is titled “Official Letter of Authorization for the Establishment of a Branch office of the ABA in Sri Lanka”.
6. In October 2018, the BASL wrote to the Ministry of Justice and responded stating that the BASL does not see any need to register a Branch Association of the ABA in Sri Lanka.
Further to the above we wish to invite your attention to the following matters;.
1. As per the original request by the ABA it had been stated that the activities of the Branch proposed to be set up will be monitored by the Ministry of Justice and the Attorney General’s Department.
We wish to state that neither the Ministry nor the Attorney General’s Department represent the legal community and that the BASL is the largest and sole representative body recognized under our legal system as the body representing the legal profession.
2. Nowhere in the world will a legal system allow or permit a foreign Bar Association to set up a Branch office. In the original request to set up a Branch of the ABA it is stated that it would be in the interests of the ABA to set up a Branch office in Sri Lanka.
Throughout the world, where international interests are concerned, the mechanism that is adopted is to retain the services of the local legal professionals of course wherever necessary with the input of the lawyers of the respective countries.
The BASL strongly objects to the initial application to set up a Branch office.
3. The legal system in Sri Lanka dates back to 1801 and we are the heirs to a rich legal culture and a competent legal system. If the ABA is genuinely interested about servicing the clients of US origin, they can adopt the same system that is adopted throughout the world.
4. The other ground upon which we would strongly object to the setting up of this branch office involves the question as to what the Ministry would do if other foreign Bar Associations make applications on similar lines. There are several countries with which Sri Lanka maintains close ties and what would be the position of the Ministry and the State if these countries make similar requests?
5. The BASL strongly objects to the registering of a Branch Association of the ABA on the above basis. It is an unprecedented request and if allowed will have serious consequences on the independence of the legal profession and the sovereignty of the nation.
6. The request to register the ABA branch as a NGO appears to be an afterthought.
The basis that the ABA and their legal representatives in Sri Lanka seek to justify the application to register as a NGO is that the International Bar Association (IBA) is desirous of providing assistance for training of Judges and Prosecutors.
7. It must be stated that this is not the first time that such training has been provided by International Organizations. For more than 25 years entities such as the EU, USAID, UNDP and UNICEF had provided similar training and technical support to the legal profession in Sri Lanka.
In all these instances, the issue of registration of such entity as a NGO did not arise. The support was provided through their local institutions which had already been recognized.
In these instances, the respective institution would enter upon a MOU and provide assistance and training as agreed.
8. If the ABA is genuinely interested in providing assistance and services what the ABA should do is to adopt the same mechanism.
9. In the event this application is allowed the ABA will have their own office and will start making comments and statements on internal matters which will have an -impact on a sovereign Nation.
In these circumstances, the request to register ABA as a INGO is seen by the BASL as an indirect means to establish their presence in Sri Lanka knowing very well that the application for registration as a Branch Association would fail.
10. We also observe that the intention of the ABA appears to be to train the prosecutors and judges. We have no objection to such selected training being provided to the two selected institutions provided these institutions agree to do so on a MOU.
We also have to state that even as at now such training and field trips are provided to the honourable members of the Judiciary and the members of the Attorney General’s Department.
In these circumstances we strongly object to the application made on behalf of the ABA to register as a NGO.
Please note that unlike in the case of an ordinary NGO, the application in this instance has a serious impact on the legal profession and the very concept of sovereignty.
In the event you need further clarifications Please be good enough to provide us with an opportunity, to make further representations.