Taking sides | Sunday Observer

Taking sides

2 April, 2023

Professional associations are both maligned and damned with faint praise with great regularity in this country. Often they are damned if they do and damned if they don’t. If they are seen to be too involved in any advisory capacity in the affairs of the State, they are castigated as being partisan.

But if professional associations such as the Bar Association limit themselves to the issues concerning membership only, the public see these bodies as being the mere appendages of rich professionals who have money to burn. Talk about a no-win.

Of course this is the conundrum or the paradox if you will. People who do not have an elementary understanding of the ways of the world would expect both non-partisan and useful conduct from professionals and professional associations. But that’s a virtual impossibility in democracies.

Conduct that’s seen to be too useful to the politicians in power is naturally seen as ingratiating by Opposition parties. But if there is a discernible shift in sympathies towards the Opposition, the Government would instantly cry foul. There is no straddling a middle ground. Things don’t work that way and some countries seem to have recognised this as a reality.


Take for instance the United States where district Attorney Generals are elected officials. If somebody was to suggest that the Attorney General of this country is to be elected by the people at a national poll, legal professionals would probably be scandalised.

The New York county District Attorney also known as the Manhattan District Attorney is elected to his post. After a constitutional amendment in 1846 the District Attorney of Manhattan has been appointed by popular vote.

These days when the New York District Attorney is seeking to indict the former President Donald Trump, small wonder he is seen as doing a partisan hatchet job for the Democratic Party whose voters have essentially elected him.

It’s a fact that the current holder of the position of DA one Bragg campaigned on a platform of indicting Donald Trump if he is elected to the post of Attorney General. It is as if Saliya Peiris ran for the post of Attorney General at an election and based his campaign on a promise to indict say for example former president Maithripala Sirisena.

There may be enough people who would want to see that happen, but if an elected official perused a prosecution it would necessarily be seen as partisan. In fact that’s exactly the way a majority of Republicans are seeing the move to indict Donald Trump these days.

But the point this writer is driving at is that any act by a professional that involves politics or politicians in any way would be seen as being partisan in some way, and he doesn’t have to be an elected official in any strict sense.

Of course the president of the Bar Association (BASL) is also elected to office but not to State office as the District Attorney of Manhattan is elected. The BASL president is elected as the head of the professional body representing the lawyers. The membership of Attorneys at Law elect him or her.

However, the BASL president performs no duties of State in his capacity as the elected head of the professional body. But then he or she is seen as partisan if they veer a little bit to the left or right politically, as the case may be.

Given this is the case, they may as well be electing the Attorney General of this country as they elect the DA of Manhattan. If an individual is elected head of a professional body and is seen as partisan, then what’s the difference if the same person is elected to office that is a repository of State powers, such as the office of AG, and then is called partisan to boot?

The comparisons between the US and this country in this regard confirms that one thing is clear. Everyone who is seen to be anything other than totally apolitical will be seen as being partisan most of the time, and if that is the case, they may as well be partisan and be elected in a partisan manner by the people.

There is no serious suggestion in this article that the Attorney General of this country should be elected. But it’s difficult to keep alleged partisanship out of so called neutral judicial and prosecutorial positions in this country, or any country.

Those who are now protesting against the suggestion that Supreme Court judges should be brought before parliamentary Select Committees are obviously outraged that the independence of the judiciary is being assailed. The sacrosanct divide between the judicial branch and the legislative branch is being violated would be the obvious conclusion.

But again, to take the US example, Supreme Court judges are brought before a Select Committee made up of Senators before they are confirmed in Supreme Court positions. Of course sitting judges who have gone through this confirmation process and have been duly appointed to the Supreme Court bench can never be brought before Senate committees after they have been confirmed and appointed as judges.

This writer had the privilege of speaking to a very eminent retired Supreme Court judge of this country once, and had the temerity to suggest to this somewhat revered figure that perhaps Supreme Court judges should appear before a parliamentary Select Committee to be confirmed as judges of the Supreme Court as its done in the United States.

The ex-judge said he would resign any post rather than be subject to the indignity. The bottom line is that it’s never cut and dry in a democracy, this so-called matter of maintaining the independent status of the three different arms of State power, the executive, legislature and the judiciary.


In some ways there is no such thing. Each branch treads on the toes of the other at given times, probably depending on which branch is more powerful than the other at such a given time. But then does it mean that the doctrine of separation of powers is meaningless and should be treated as a fiction because it’s seen as being observed in the breach quite a bit of the time?

That’s not the case, and shouldn’t have to be the case at all. At a given time one branch may tread on the other a little more than is good for comfort, but whether that’s excusable or not in the larger scheme of things would be quite obvious depending on the context.

They say the difference between art and pornography is obvious because you know pornography when you see it. That doesn’t mean that there isn’t a lot of art that maybe borders on pornography, but such art is never seen as smut as such.

It’s the same when one branch of government treads on the toes of the other and is seen to be breaching the doctrine of separation of powers, even ever so slightly. People know it when there is excess.

Strict neutrality or strict professional neutrality in a democracy, it’s true, is often a fallacy. It’s why perhaps in the US the District Attorney in some important precincts such as New York are elected officials. There is no point in maintaining a façade of lily-white independence when what the majority of people want at a given time is represented by the winner of a popular vote.

Of course people sometimes keep asking where the justice in this is as the Republicans are asking now. But total professional neutrality is a fallacy and if anybody says there is such a thing he or she is in la-la land.

But in the big picture, the separation of powers is important. The people would be able to see for themselves and decide what’s right and what’s in excess at a given time. Even though democracy is not perfect it’s not a process without basic redemptive features.