BASL’s Triple Role: Professional Body, Trade Union or Regulatory Authority?
The Bar Association of Sri Lanka (BASL) has increasingly positioned itself at the centre of debates concerning Sri Lanka’s judiciary, constitutional reform, judicial appointments, legislation and other matters extending well beyond the immediate professional interests of lawyers. This raises an important question that deserves a serious public discussion: what exactly is the institutional role of the BASL, and where are its boundaries?
The question is not whether lawyers should have a voice in matters affecting the justice system. They clearly should. Lawyers are important participants in the administration of justice, and an independent legal profession is essential to the rule of law.
But independence does not mean unlimited institutional authority.
The BASL must therefore explain to the public whether it primarily functions as a professional association representing lawyers, a trade-union-type organisation protecting members’ interests, a participant in the administration of justice, or an organisation claiming a broader regulatory and constitutional role.
If it attempts to perform all these functions simultaneously, the possibility of institutional conflicts of interest cannot simply be ignored.
The fundamental question: what is BASL?
The first question that should be asked is straightforward: What is the legal and institutional character of the BASL?
If BASL is fundamentally an organisation representing lawyers and their professional interests, then its intervention in matters directly affecting the judiciary must be examined against that mandate.
A professional body has a legitimate interest in issues such as professional standards, education, working conditions, ethical obligations, access to justice and the welfare of its members. It can make representations to government and Parliament. It can express opinions on legislation. It can advocate for improvements to the justice system.
But there is a significant difference between expressing a professional opinion and assuming the authority of a regulator or constitutional institution.
If BASL is effectively acting as a trade union, the distinction becomes even more important. A trade union exists principally to represent the interests of its members. A regulatory authority, by contrast, exercises responsibilities in the wider public interest and must operate under a clearly defined statutory or legal mandate.
One organisation cannot simply move between these roles whenever convenient without explaining the legal basis for doing so.
Can a representative organisation simultaneously be a regulator?
This is where the public debate becomes particularly important.
If an organisation represents the interests of its own members while simultaneously exercising regulatory authority over those same members, there is an obvious potential conflict of interest.
The principle is not unique to Sri Lanka. In professional regulation, the distinction between representation and regulation is important precisely because regulatory decisions must be made objectively and in the public interest.
A representative body asks: What is best for our members?
A regulator asks: What is best for the profession, the administration of justice and the public?
Those objectives can overlap, but they are not necessarily identical.
Therefore, if BASL considers itself a professional representative body, it should clearly identify the legal authority under which it claims regulatory powers. If it considers itself a regulator, it should explain the statutory or constitutional foundation for those powers and the safeguards that prevent conflicts of interest.
The public is entitled to ask these questions.
The retirement age of judges
This issue has become particularly visible in BASL’s campaign concerning the retirement age of judges.
There is nothing inherently wrong with lawyers debating the appropriate retirement age for judges. The subject concerns the judiciary and therefore directly affects the legal profession.
However, a more fundamental question must be asked: What is BASL’s precise institutional mandate to campaign against a policy decision concerning judicial retirement?
If BASL believes that a proposed change would undermine judicial independence, it is entitled to make that argument. But it should make the argument through constitutional, legal and policy reasoning rather than presenting itself as an institution with authority superior to Parliament or the elected government.
The final decision on constitutional and legislative questions belongs to the institutions empowered by the Constitution and law.
BASL may participate in the debate. It should not be confused with the institution that ultimately makes the decision.
The judiciary is not the BASL
Another important distinction is between the legal profession and the judiciary.
Lawyers appear before courts. Judges administer justice. The two institutions have different responsibilities.
A professional association representing lawyers should therefore be extremely careful when its activities appear to place it inside the institutional machinery of the judiciary.
The independence of the judiciary is essential. But judicial independence does not mean that every organisation associated with lawyers automatically acquires constitutional authority.
Nor should lawyers' representative organisations become substitutes for Parliament, the executive, the courts or independent statutory regulators.
Each institution has its own constitutional and legal boundaries.
The Kodithuwakku controversy and the question of accountability
Past controversies involving disciplinary action against individual lawyers have also raised questions about the extent of BASL’s authority.
The case involving lawyer Nagananda Kodituwakku has, for example, been cited in public debate as an illustration of the need to examine carefully the distinction between professional representation, disciplinary authority and regulatory power.
Such cases should not be reduced to whether one lawyer or another is politically popular. The larger issue is institutional accountability.
Whenever a professional organisation takes action affecting a person's professional status, the public should be able to identify the legal authority for that action, the applicable rules, the procedure followed, the evidence considered and the avenues of appeal or review.
That principle applies regardless of whether the person involved is popular or unpopular.
Lawyers are not above the law
There is another misconception that deserves attention: lawyers, because of their knowledge of law, are sometimes perceived as possessing a special authority over ordinary citizens.
They do not.
Lawyers are officers of the court and members of a regulated profession. Their professional status gives them important responsibilities, but it does not give them unlimited political, constitutional or administrative powers.
Nor does legal education create what might be described as “divine powers”.
The legal profession exists to serve the administration of justice and the public.
The public therefore has a legitimate interest in asking whether professional organisations are operating within their lawful parameters.
Public funding and professional responsibility
There is also a broader question concerning legal education and the relationship between the legal profession and society.
Many lawyers receive education and training within institutions that are supported, directly or indirectly, by public resources. Regardless of the precise funding arrangements of any individual lawyer, the legal profession ultimately operates within a justice system maintained by society and funded substantially through public resources.
That creates an important social responsibility.
Lawyers should not be regarded as a privileged class whose professional organisations are beyond scrutiny.
The same democratic principles that apply to politicians, public officials and state institutions should also apply to powerful professional organisations.
The danger of institutional overreach
The concern is not that BASL should remain silent.
Quite the opposite.
A strong professional association can make an important contribution to Sri Lanka. It can challenge government decisions, defend judicial independence, promote access to justice and identify weaknesses in legislation.
But its credibility depends upon clearly defined boundaries.
When an organisation speaks as a representative of lawyers, a professional body, a guardian of judicial independence and a participant in regulatory or disciplinary processes, the public can reasonably ask whether these different roles create institutional overreach.
The answer should not be political rhetoric.
It should be found in the law.
Time for transparency
The Sri Lankan public therefore deserves a clear explanation from BASL.
Is it primarily a professional association?
Is it a representative organisation?
Does it function as a trade-union-type body?
Does it possess independent regulatory powers?
If it exercises regulatory functions, where do those powers come from?
If it participates in judicial mechanisms, what is the legal basis for that participation?
And when it campaigns on constitutional or political questions, what safeguards exist to ensure that its institutional interests do not become confused with the public interest?
These are legitimate democratic questions.
The objective should not be to weaken the legal profession. It should be to strengthen confidence in it.
Sri Lanka needs an independent judiciary, an independent legal profession and strong professional institutions. But independence must always operate within the framework of law.
The BASL should therefore welcome scrutiny rather than regard every question about its authority as an attack on the legal profession.
The ultimate issue is simple: no professional organisation, regardless of its influence or reputation, should be regarded as being above accountability.
If BASL is acting within its lawful mandate, it should have no difficulty explaining that mandate to the Sri Lankan public.
If it is performing several different functions, it should explain how those functions are legally separated and how conflicts of interest are prevented.
That conversation is not an attack on lawyers.
It is a necessary conversation about institutional accountability, separation of powers and the rule of law in Sri Lanka.