COLOMBO : The keynote address on “The Role of the Professional in a Just Society” was delivered by Saliya Pieris PC, President of the Bar Association of Sri Lanka at the Institute of Chartered Professional Managers (CPM) Sri Lanka, annual convocation 2021 held on 22nd March 2021 at the BMICH.
The full text of the speech is as follows.
Let me first of all extend my congratulations to all of you who are to receive your awards today. Let me also thank the Institute of Chartered Professional Managers for extending an invitation to me to deliver the keynote address on the ‘Role of a Professional in a just society’.
I am privileged to share this moment with our Chief Guest today, for whom I have always had the highest respect as a senior officer at the Attorney General’s Department and thereafter the Senior Judge and as Chief Justice, Justice Sripavan always strived to do Justice and maintain the highest standards of ethics and professionalism. It would not be wrong to say that Justice Sripavan assumed office as the Chief Justice at one of the most turbulent periods of the judiciary in Sri Lanka and that he managed to restore public confidence in the Judiciary.
The topic of my address to you is a ‘Role of a Professional in a just society’. While there is no single definition of a ‘just society’, freedom, equality, Justice, fundamental human rights, the independence of the judiciary are described as intangible heritage that guarantee the dignity and the wellbeing of the people of Sri Lanka. They are all important aspects of a ‘just society’. The dignity and freedom of the individual and a fair social, economic and cultural order are all integral requirements of a ‘just society’. It is said that a society is just, only when it treats the feeblest, the weakest segments of its community, of its society in the same manner that they treat the strong. To achieve these ends, professionals play an important role both as individual professionals and as professional bodies. Now what makes a professional different from any other citizen. The person seeks the services of a professional when it involves the subject matter which is complex, and which cannot be solved by himself or when he alone cannot decide on what should be done.
The term ‘professional’ refers to anyone who earns his or her living from performing an activity that requires a certain level of education, skill or training. There is a required standard of competency, knowledge or education that must be demonstrated. Most importantly professionals involved adhering to a code of conduct and ethical standards and often these are self-regulatory. ‘Professionals’ distinguish themselves from those engaged in other forms of employment for several reasons. They identify themselves by reference to some register or record, they are recognized as having a special skill and learning in some field of activity. They hold themselves out as being willing to serve the public, they submit themselves to self-imposed standards of conduct, very often conduct that required more than an ordinary citizen. They undertake to accept personal responsibility, to both those whom they serve, for their actions and also they are responsible to their profession. In order to carry out their duties, professionals need to be guided by a code of conduct setting out the core values and responsibilities of the profession, demonstrating high ethical standards and values is said to be the key to greater professionalism.
Now among these standards are,
· Accountability – taking responsibility for one’s actions,
· Confidentiality – keeping all sensitive information private and away from those who shouldn’t have access to it,
· The fiduciary duty – holding a position of trust,
· Honesty – being truthful and frank,
· Integrity – having strong moral principles,
· Law abiding – following all governing laws in the jurisdiction they perform their activities,
· Loyalty – remaining committed to their profession,
· Objectivity – not to be swayed or influenced by biases and
· Transparency – revealing all relevant information and not concealing anything.
Now one of the most important aspects of every profession is a high degree of independence in decision making. Sir Edmund Liggins, the President of the Law Society in England addressing the sessions of the Royal College of surgeons, in 1976 stated that the hallmark of the professional man must be his integrity and independence. A professional has responsibilities and obligations which go beyond those which he owes to his clients. All professionals in carrying out their duties have obligations and responsibilities not only towards their clients but also to their own profession and to the society. In the legal profession, a lawyer who appears in a case owes a duty not only to his client but to his fellow lawyers and most importantly to quote “if ever there is a conflict between the perceived interest of his client and the Court, a lawyer owes his primary duty to the Court even if it conflicts with the apparent interests of his client who may be paying him his professional fees”.
As such a lawyer is required to act within the four corners of the law in representing his or her client and it would be illegal or unethical for him or her to act beyond the framework of the Law or even to advice his or her client to do so. In a similar way, Accountants too are bound by codes of ethics requiring them to have a responsibility to act in the public interest. It is for this reason that a professional cannot advise his client to engage in unlawful activity or to advise his client in a manner which would further any unlawful activity. An Attorney-at-Law cannot advise his client on how to commit the crime or how to do an illegal business or how to commit an illegal transaction that would be an offence and a malpractice. Similarly, an accountant or tax advisor is not expected to advise his client on how best to cook the books or to commit tax evasion or to commit money laundering. Perhaps, the largest and most notorious accounting scandal in the world was the ‘Enron scandal’, where the Enron Corporation tricked the investors into thinking that the firm was doing better than it actually was. In mid-2001, the company shares were trading at $90.75, by November in the same year, it plummeted to 26 cents a share. In the end, many of its executives including the financial professionals were charged for insider trading and security fraud and they were jailed for long periods of time. Ultimately, the scandal led to the passage of the Sarbanes Oxley Act protecting the investors from fraudulent accounting activities of corporations. The role of the professionals in our society be the doctors, lawyers, accountants, engineers, or managers often come up for discussion.
In the past, professionals were held in high regard by society. The family doctor or the ‘Proctor’ as the lawyers are identified especially in the outstations, were seen as reliable and trustworthy people, to whom people would look up to and where to people would go for advice. Today, many professionals and professions are subject to criticism by the average citizen for a variety of reasons. Probably the legal profession, the medical profession are among the least popular among the professions and are subject of criticism by people who see them as being too interested in gathering wealth and power than looking at the interests of the average citizen. Professionals dealing with average citizens such as lawyers, doctors are at times accused of charging unconscionable fees which makes these services unavailable and inaccessible to the public. While free health and legal aid may be available, they do not provide easy access to the members of the public. If we want professionals to be involved in creating a ‘just society’ every profession must evolve a way to ensure that their services are truly accessible to members of the public.
Professionals are often accused of not keeping their clients fully informed and of depriving them of the opportunity to make informed decisions today. In many countries professionals are required to keep their clients or their patients informed of all relevant facts which would enable them to take informed decisions on matters which affect their lives. In the landmark case in the United Kingdom, in the case of Montgomery vs Lanarkshire Health Board, the Supreme Court of the United Kingdom held that a medical professional must respect the woman’s choice unless she lacks the legal capacity to decide and that she was entitled to the information which would enable her to take a proper part in an ‘informed decision’ on her care and treatment. Now this is applicable not only to the medical profession, but it is applicable to all professions, their clients, their patients are entitled to all relevant information, which would enable them to take decisions which would affect their lives.
Many citizens see the declining standards of the profession and some professionals stand accused of following questionable practices which are contrary to the ideals. The average citizen has little remedy in respect of professional negligence and professional malpractice as questions remain whether the professions in Sri Lanka have been successful at self-regulation. In medical negligence cases litigants often face obstacles in obtaining the required evidence to prove their cases. One of the most important aspects of a profession is the ability to maintain its independence. Here I’m not talking only of the individual independence of the professionals but also the independence of the professional body. Professional bodies must ensure that they carry on their activities with independence and while interacting with the state they must ensure that they do not become overly reliant on the state or on Government machinery.
In respect of legal profession, it has been said that it is an independent legal profession that is vital for an independent judiciary. An independent judiciary and an independent legal profession is of much importance to the society because ultimately it is they who stand between the citizen and the state and the citizen and the citizen. As much as the Judiciary and the profession being important, it is vital that the individual independence of Judges and Lawyers must be protected and be encouraged. Similarly, an independent medical profession and an independent accountancy profession, independent managers are all vital for an independent nation. The need for the medical profession both in the private sector and more so in the state sector are of much importance. Independence is defined as the ability to take decisions without being subject to external influences and pressures, such independence is needed in respect of many regulatory bodies run by professionals be they institutions such as the Sri Lanka Medical Council, the National Medicine Regulatory Authority, the Auditor Generals Department, the Central Bank, the Securities Exchange Commission, the Attorney General’s Department and so on. It is only if the independence of these institutions are safeguarded that the country can seek to achieve the ‘just society’. Independent institutions, independent professional bodies must maintain their independence they must be non partisan, they must be able to take decisions based on principles and that is important for our country.
Professional bodies and professionals must play a greater role and be more vocal in safeguarding freedom, equality, Justice and human rights. They should not see these aspects of society as something alien to their functions. Professionals of various disciplines have different roles in safeguarding these freedoms for instance the protection of the environment, the protection of the consumer rights, the preservation of health rights, the protection of economic and social rights, preservation of the nation’s wealth are not the preserve of just the legal profession, but these would require the involvement of professionals from many disciplines.
Finally, I would like to remind all professionals that there are certain fundamental duties and obligations which though are not enforceable which are intrinsic to achieve a ‘just society’. These obligations, fundamental duties are cast upon citizens but we as professionals have a special duty to ensure that we perform our duties and obligations in terms of Sri Lanka’s Constitution. These fundamental duties are to uphold and defend the Constitution, to further national interest and national unity, to work conscientiously in once chosen occupation, to preserve and protect public property, to curb the misuse of waste of public property, to respect the rights and the freedom of others, to protect nature and to conserve riches.
Afterall, Professionals are a part of the society. What affects society, affects all of us including the professionals in our Country. In the words of John Donne ‘Any man’s death diminishes me because I’m involved in mankind, and therefore, never send to know for whom the bell tolls, it tolls for thee’. So, it is necessary that all professionals be involved and be engaged in preserving the rights of the citizens of this country and the collective rights of the people of this country. This can be done only if all professionals take a principal stand on the issues which affect our Country.
