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29th August1999

Can the Bar betray its cause?

By Mudliyar

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When Dr. H.W. Jayewardene, Q.C., Emeritus President of the Bar Association of Sri Lanka, was looking for a senior lawyer to contest for the post of presidency and found none to his liking, he had to request H.L. De Silva to stand for the post.

Mr. de Silva was at that time one of the lawyers who frequently was pitted against Dr. Jayewardene. Mr. de Silva was the Senior Counsel for Sirimavo Bandaranaike. When the then Government tried to deprive her of her civic rights on the recommendation of a Presidential Commission, it was Mr. de Silva who defended Ms. Bandaranaike. Subsequently Dr. Jayewardene empanelled Mr. de Silva to represent the govvernment at the now famous Timpu talks.

When Mr. de Silva reluctantly agreed to run for the BASL presidency, there was opposition from several groups. This was the time when the Sinhala Lawyers’ Association had some clout. These were lawyers who had come to the profession after the 1956 revolution and thought that soon clients would queue up outside their residences and offices to retain them because Sinhala had become the language of the Courts. They thought that all lawyers who had the bulk of civil and criminal practice would be unemployed as they did not know even the Sinhala spoken by the ‘kussiammas’.

Like all narrow minded chauvinists they suffered from this myopia. They forgot that language was only one skill and the acquiring of legal skills was the most inventive and powerful tool lawyers could possess. A few who tried to address in Sinhala found that their Sinhala was no better than their English. They got together and put forward the late R. Pallewela, a journalist turned lawyer, as their candidate.

They said that Mr. de Silva must learn to smile, and erase that morose and serious look. They said that Mr. de Silva was a recluse; he was confined to his chamber and to the Superior Courts he practised; he was not known to a single outstation lawyer other than those who retained him; he was not a social upbeat; no one knew who his juniors were.

But the legal profession could not be deceived. They knew that of the two, there was no comparison as to who should be the leader of the most prestigious association at that time. Mr. de Silva won convincingly.

It was only after he was elected that the members knew the true nature of Mr. de Silva. Dr. Jayewardene undoubtedly did yeoman service to the establishment of the Bar Association. He worked so hard to make the BASL the most outstanding association of professionals. He fought Felix Dias Bandaranaike relentlessly, but later his attitude was sometimes coloured by the politics of his brother J.R. Jayewardene. His stand was not independent of the ruling party.

Therefore the fearless attitude which he displayed most convincingly against the manoeuvres of Felix Dias Bandaranaike was not shown when the manoeuvring was done by J.R. Jayewardene. It is said that when J. R. Jayewardene sacked the Supreme Court, Dr. Jayewardene was instrumental to some extent for it.

The BASL members expected that when Mr. de Silva became president that he would, like some past BASL presidents, be a mere puppet in the hands of Dr. Jayewardene. But the true leadership qualities of Mr. de Silva came to the fore when he fought for what he thought was right.

He respected the wishes of the members. When there was a crisis in the Bar Association after the killing of Wijedasa Liyanaarachchi, he refused to participate in the ceremonial opening of the Superior Courts Complex. There was enormous pressure brought to bear on him by Dr. Jayewardene and others, to attend the ceremonial opening where Mr. de Silva was scheduled to speak as the BASL President. He stood firm. He told BASL members who were in the Council and the others who were not, at a meeting held at the Law library that he would not attend the ceremonial sittings until the suspects who killed Mr. Liyanaarachchi were arrested and produced in Court.

A leader was born! If H.V. Perera Q.C. had made the biggest contribution to the development of law in Sri Lanka and his achievements remained unsurpassed, the leadership displayed by Mr. de Silva would similarly remain unsurpassed. Soon after this government came to office, Mr. de Silva had to give up his position as the undisputed leader of the Superior Court, and take up the post of the Permanent Representative to the United Nations. When he returned, the President bestowed the highest National Honour Deshamanya on Mr. de Silva and three other distinguished Sri Lankan lawyers.

Today when the judiciary and the office of the chief justice was facing the gravest threat in its existence it was H.L. de Silva who came to the forefront at the recently held seminar conducted by the Bar Association and expressed his anxiety without any reservations.

He said: “there is currently prevalent a sense of grave concern and apprehension, one may even say a degree of acute anxiety, in a section of the legal community, that the deeply cherished values of judicial independence and moral integrity among judges are under serious threat and in a state of crisis. The foreshadowed dangers have over the years indecorously increased in intensity, and have now reached a critical point when radical reforms have to be effected to reverse this trend”.

Let us examine what are the prevalent concerns of the Bar which according to Mr. de Silva show that independence and the moral integrity among Judges are under serious threat. Unfortunately, these matters which according to the media constitute a grave threat to one of the important pillars of an independent judiciary, which is the moral integrity of judges, have been first exposed by a weekend tabloid newspaper. They are:

(1) the allegations against the Magistrate Lenin Ratnayake.

(2) the allegations against the District Judge Upali Abeyratne

(3) the allegations against Attorney General Sarath N. Silva.

Mr. de Silva says: “What is surprising and disturbing however is the sense of apathy and inertia of the majority of the members of the Bar who seem to be unmindful of these dangers. They portend the degradation and the eventual end of the profession as we have known it. Shorn of independence and without moral integrity the whole judicial process will become a ridiculous farce. Lawyers will be like clowns prancing around in a meaningless charade”.

This is indeed a grave indictment against the legal profession in general, and the Bar Association in particular, considering the leadership he once gave to the Bar Association when there was a grave danger to the very life and limb of lawyers who were on the side of the oppressed.

The killing of lawyers did not deter the Bar Association from fighting against pro-government goon squads. Ultimately the Bar won!

In a country full of mediorcrities, charlatans and confidence tricksters the men of the noblest profession would give lame excuses that they knew the particular person or persons, and had shared common intentions and wined and dined with them at some pow-wow, and therefore, are unable to carry out or participate in a struggle to prevent them from holding any judicial office.

These are reasons given by clowns prancing from Court to Court seeking from others who support these immoral Judges, to get an unfair advantage over others. These persons would not mind even if this would lead to the eventual destruction of the Judicial system based on moral values.

After the breath-taking speech delivered by Mr. de Silva which according to many members was one the best orations they had heard for many years, a Member of Parliament thanked the organizers for inviting him and said that in his career as a politician the discourses of the speaker were the finest he had heard.

At the end of the speeches, Mr. Neelakandan, a member of the Executive Committee asked Mr. de Silva what more can the Bar do? As suggested by the past presidents, he contended that the Bar had met the chief Justice and two committees were appointed to go into these matters, and the JSC had informed them one Judge had already been dealt with and the other Judge had been sent on compulsory leave pending an inquiry.

Mr. de Silva in reply said: “What should be done concerning the publicity given to the facts which we all know. It was our view that one of two things had to be done. First of all we were uncertain as to what the facts were, and it was therefore necessary to ascertain whether these allegations had any foundations of fact, or whether they were totally baseless.

“In the latter event we took the view that steps should be taken to bring the newspaper concerned before the Court, either in a contempt of Court proceedings or criminal defamation or whatever was thought necessary. But if on the other hand the officers concerned were in any way guilty of those acts then in our view, firm action had to be taken by the appropriate authority and that was the Judicial Service Commission.

“As far as I know the then president of the Bar did make representations to the Chief Justice, but I do not know whether he had already taken action consequent to these being brought up in the press, or whether pursuant to that request two Committees were appointed to inquire into these two cases. And now it seems rather significant that it needed the plodding of the Bar, for the body that was constitutionally vested with the power to discipline judges failed to take action to that point of time.

“Secondly we believe that proceedings of this kind should be held in the public interest, and that there should be some kind of public announcement as to what was done by the JSC in regard to the complaint made by the President of the Bar, and the public must be informed as to what consequential steps are being taken, rather than leave us speculating as to what is going to happen.

“So if one is assured that steps are being taken, or if steps have already been taken, then I do not think it is outside the Jurisdiction or the powers of the Bar to comment on their adequacy or whether in some way the JSC is remiss in not taking appropriate action.

“I think it is the responsibility of the Bar to express its own opinion in regard to the standards that must be maintained and give expression to that.

So in my view it is a false notion to think that by remaining silent or by not talking about these uncomfortable facts, you are seeking in some way to maintain a facade of independence or that everything is well with the Judiciary. That is not so.

“I for myself value press disclosures because they are one way in which we can generate public interest and ascertain whether public institutions are properly functioning, however high they may be, and for myself I think the press has done a service in bringing these matters to public attention. It is the press disclosures that led to these inquiries, and that is therefore a useful function. That is my view of this matter”.

The vexed question before the Bar today is whether the private relationship concerning a judicial officer or any other person seeking such high office should debar him from seeking of or being appointed to such High Office.

This is what another BASL past president, Ranjith Abeysuriya, P.C. said: “Now, Judges have to judge between subjects and subject and State, and Judges particularly of the Superior Courts have to discipline the profession. Can you expect Justice from a disciplinary authority which has been lacking in this respect?

If the profession leaves such appointments to be made to the highest Court in the land, without a murmur of protest, as Mr. H.L. de Silva contended, would it not be a betrayal of the trust and responsibility of the members of the profession and its public image as fearless fighters for justice and the noble ideals which inspired it and sustained it throughout history?

Letters to Mudliyar

Duracharaya and Anacharaya

In the Sinhala Dictionary which was compiled under the auspices of the University of Ceylon, later taken over by the Department of Cultural Affairs: “Anacharaya” is described as “aachara dharmayata viruddha vu hesirima” “ ayahapath ho nindita hesirima” and “duracharaya” (Part ii page 473).

It is obvious that “anaacharaya” and “duracharaya” are used synonymously. As pointed out in the authoritative source the word “annacharaya” is used in such classical works as the Jataka Atuva Gatapadaya (12th century) and the Jataka Potha (14th century) in the meaning “adultery” (i.e. paradara sevanaya ho parapurusha sevanaya”).

In Sinhala this is a loan word from Sanskrit and Pali. The nirukti or word derivation is “aachara” (conduct) with the negative prefix “a” which according to Sanskrit sandhi rules because “anaachara”, meaning “misconduct”. The specific meaning attached to Sinhala usage from classical times is “sexual misconduct” of ‘adultery”.

The Sinhala Dictionary in its 31st part (page 5434) gives the meaning of “duraacharaya” as “sammata aachaara dharmayata viruddha vu hesirima” “ayahapath pavetma”, “annaacharaya” are synonymous.

The fact that “duraacharaya” is used in the meaning of adultery in the Jataka Pota (914th cen) is indicated in a quotation from the Stree Chikitsaavaliya. This word too is a borrowing from Sanskrit. The word “aachara” is given the negative suffix “dus” giving the meaning “bad conduct” which again in usage can mean any bad conduct, but also used in the specific meaning “sexual misconduct” or adultery”

Prof. K.N.O. Dharmadasa, Nawala.

Mudliyar and professional ethics

Recent articles by the Mudliyar referring to the conduct of lawyers have been interesting reading matter.

However, last Sunday’s article refers to a young lawyer’s personal life in that he has changed his mind not to marry his fiancé. A financial transaction between him and his fiancé is now being inquired in to. Is there a link between personal conduct and professional conduct?

In any case it is heartening to note that Lawyers keep very high professional ethics unlike in other professions.

Can citizens seek redress against doctors, engineers, architects, etc from their professional bodies without going to Courts? Other professionals should follow the lawyers’ example. Hats off to the Bar Association. Wg Cdr. S.K. Ratnapala (rtd)

The Jungle Telegraph

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