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A legend in the making 
[July 11, 2003]


Golden Jubilee Anniversary of H. L. de Silva P.C. as an Attorney-at-Law
By Lakshman Kadirgamar P.C., M.P

http://www.priu.gov.lk/news_update/Images/2002/hl_silva.jpgH L joined the Law Faculty of the University of Ceylon in 1948. The Faculty was just one year old. The first intake in 1947 had, among others, R. K. W. (Raja) Goonesekere who, after graduation, stayed on in the Faculty as a lecturer for about two decades, later taught law in Nigeria, became Principal of the Law College and is now a distinguished practitioner and currently Chancellor of the University of Peradeniya. Ana Seneviratne, who later became Inspector General of Police, was also in the first batch. Among H L's contemporaries in the second intake were Felix Dias (before he added Bandaranaike to his name), the well-known politician, and John de Saram, later Director of the UN Legal Division who succeeded HL as our Ambassador to the United Nations.

The third intake of 1949 included Kenneth Shinya (who took a first class degree in Law, the only first class for many years), Abid Esufally, Mahen Vaithianathan, Gilbert Jayasuriya (all of them no longer with us) and others. The fourth intake in 1950 included, among others, Ranjit Abeysuriya (later President's Counsel and incumbent chairman of the National Police Commission) and myself. The faculty was very small in those far off days. When H L took his law degree in 1951 the entire group of four intakes that overlapped with him could not have been much more that fifty.

We had an outstanding group of teachers. The first Professor of Law was Sir Francis Soertsz, retired senior Judge of the Supreme Court. Sir Francis, a master of the criminal law, on which he lectured to us, was an eloquent speaker and a most engaging raconteur. He came for his lecture in an enormous chauffeur-driven black Buick of ancient vintage. Always smartly dressed in a double-breasted suit with a polka-dotted bow tie and a soft felt hat tipped at a jaunty angle, he entered the classroom swaying slightly (being a friend of Bacchus). He sat down to mark the attendance register. It was a difficult manoeuvre for him. He placed the tip of the pencil on the page and slid it along from name to name as he called out names. If he had lifted the pencil he might not, with trembling fingers, have got it down again in the correct place. This painful exercise over he stood up, and then he was a man transformed.

He lectured without a note for well over an hour in impeccable, cultured English. He hardly ever referred to the law reports or to specific sections of the Penal and Criminal Procedure Code. He recalled in vivid detail famous trials in many of which he had been either counsel or presiding judge in the course of a long legal and judicial career. Important concepts of criminal law were woven into his discussion of these trials. He could have been addressing a jury. He brought the real world - the world of crime - into the classroom. His lectures were theatre. We were spellbound. What a wonderful introduction to the living law.

Then, in contrast, we had the young T. Nadarajah who taught the law of contract, and succeeded Sir Francis as Professor of Law. He was the epitome of a scholar - hunched, soft spoken but precise in speech, shy, intensely focused on the law, his writings characterized by meticulous detail, even his lectures were full of oral footnotes, author of a classic book on the law of fideicommissum which took many years to complete as he was the archetypal perfectionist. Mr. Nadarajah had a brilliant academic career - a double first in the Cambridge Law Tripos and a first at the U K Bar final examination which was, and still is, a very rare achievement.

Mr. B. C. Ahlip, who taught the law of evidence and trusts was a man of few words, shy and somewhat taciturn but he had a sharp wit; his tart comments on men and matters were a delight.

Mr. H. W. Thambiah, later a Supreme Court Judge and author of books on the law of Thesawalamai, was a busy practitioner who lectured part - time on the legal systems of Ceylon. He was loquacious; his lectures tended to be rambling, but he covered a great deal of ground. He brought the hustle and bustle of Hulftsdorp into the classroom; he was always in a hurry to get back to some courtroom.

And, there was the redoubtable Sir Ivor Jennings, Vice Chancellor of the University, internationally renowned constitutional lawyer, author of a definitive work on Cabinet Government, principal draftsman of the Soulbury Constitution, independent Ceylon's first Constitution. He lectured to the first year students on constitutional law at College House on Saturday mornings. Chain-smoking "Three Roses" he held forth without a note for more that two hours. The sweep of his lectures was breathtaking. He treated us to glimpses of the back stage negotiations on the Constitution. There was a touch of drama in his lectures. He once said he leapt out of bed at 4.00 a.m., lit a Three Rose, poured himself a stiff whisky and solved a problem that had been troubling him all night. Sir Ivor was very proud of his Constitution. He had high praise for Mr. D. S. Senanayake, for his common sense and understanding of democratic values of the British sort, and for the legal acumen of Mr. H. V. Perera K.C., the pre-eminent Ceylonese lawyer of the time. But he stated his claim forthrightly, that the Constitution was his. He denigrated the Indian Constitution for being too rigid. The truth is that Sir Ivor was wholly unfamiliar with written constitutions since the United Kingdom has never had one. Although the Soulbury Constitution had stood for 25 years until it was repealed by the first Republican Constitution of 1972, it was really a failure because it did not address the important questions that arise in a multi-ethnic, pluralistic society such as ours. On the other hand, the Indian Constitution has stood the test of time - over 50 turbulent years of post-independence history. It has held the Union together against the odds. Some years after he had left the University of Ceylon to become the Master of Trinity Hall, Cambridge, Sir Ivor had, apparently, retracted his harsh opinion of the Indian Constitution in some article he had written.

There was another huge lacuna in Sir Ivor's exposition of the Soulbury Constitution. He never once mentioned, to my recollection, the concept of separation of powers. That was because in British constitutional law, in the absence of a written constitution, there is no separation of powers between the executive, the legislature and the judiciary. Some 15 years after the enactment of the Soulbury Constitution I happened to be seated in the Appeal Court next to Mr. H. V. Perera Q. C., waiting for my own case to be taken up, when he asked me whether Jennings had ever mentioned the separation of powers in the Soulbury Constitution. I said no. Mr. Perera had an appeal from the judgment of a Bribery Tribunal established by the executive. He had nothing to say for his client on the facts. He was searching his fertile mind for a reasonable legal argument - the only hope for his client. When his case was called he told Justice Sansoni that there was an important constitutional question in this bribery case and that he would like to have some time to consider and develop his argument. The case was postponed. If a lesser advocate had asked for time on that ground he would have been told to get on with his case. But Mr. Perera was special. If he said there was an important constitutional question to be argued no judge would have disagreed.

When I next met him at Hulftsdorp he again took up the question of the separation of powers in the Constitution. He said the Constitution had separate chapters dealing with the powers of the executive, legislature and the judiciary. These were the "three pillars of the Constitution". When this bribery case was finally taken up for hearing once again I happened to be in the same court. I had the good fortune of hearing the great lawyer develop his fascinating argument. It was upheld; the Bribery Tribunal was declared to be ultra vires the Constitution; the decision was followed in other cases and endorsed by the Privy Council in the famous "coup" case (Queen vs Liyanage). Judicial power - the power to try, convict and punish - can be exercised only by the established judiciary in whom the judicial power of the State is vested by the Constitution. It cannot be exercised by the other organs of State - the executive or the legislature. Thus, it appeared that Sir Ivor Jennings had not realized that the doctrine of the separation of powers was embedded in the very Constitution of which he was the principal draftsman. H V at the height of his career had reached the point where he could argue cases on first principles without the aid of judicial precedents and textbook citations. His own collection of Ceylon New Law Reports stopped at 1942. I first met him in 1960. He used to say that all the relevant case law had been made before 1942. Today, H L has the stature, the intellectual confidence and the experience to do likewise, and he does - argue cases on first principles.

A word about the library of the Law Faculty. The bulk of it was a bequest from N. Nadarajah K. C, a leading civil lawyer. It was a magnificent library - a dream for those who wished to study the law seriously - housed in Sampson's Bungalow at Reid Avenue. It had complete sets of the law reports of Ceylon, the United Kingdom, India, South Africa (since Roman - Dutch law was the common law of Ceylon), other Commonwealth countries, and even some from the United States of America, in addition to numerous textbooks and legal journals.

I must also say a word about the University canteen.

It was always a vibrant place, full of life, laughter and chatter. Every day the effervescent Mervyn de Silva was found there holding court, scattering around sizzling witticisms for the entertainment of everyone within earshot. If he had spent more time in the Library than in the canteen he would surely have got a first class degree in English, not withstanding his mercurial temperament, such was his natural brilliance. Romances blossomed in the canteen. Among the couples who met at the University, and later married, were Felix Dias and Lakshmi Jayasundere. On racing days (the racecourse was just across the road from Reid Avenue) the canteen was a hive of activity. Everybody became a tipster. Money was borrowed and sometimes repaid, sometimes not.

Well, it was in the company of those teachers and colleagues I have mentioned above, and in the ambience of the University that I have tried to describe, that H L took his first steps on the long and difficult road that has led him to the 50th anniversary of his call to the Bar.

From the Law Faculty H L went to the Law College to complete the examinations required for admission to the Bar. And thence to Hulftsdorp to earn his living. He had no legal connections. Hulftsdorp can be a lonely place for the outsider. Even the great H V Perera had perforce to hide his light under a bushel for many years until destiny beckoned although, before the first World War, he had won the government scholarship to the University of London, and obtained a first class degree in, and won the Meyer Rothschild Scholarship for, mathematics. But the waiting time for H L was shorter. He had a friend in Felix Dias who, in H L's own words, taken from his recent Oration in memory of Felix, was "heir to a great family tradition that had lasted for several generations". Felix entered Hulftsdorp with the proverbial silver spoon in his mouth. The briefs came thick and fast. Felix helped H L. It was while he was holding one of Felix's briefs in the Appeal Court that Fortune smiled on H L. This is how it happened.

I had become Justice Gratiaen's Private Secretary in November 1954 after completing the Advocates Final Examination. A word about this great Judge will not be out of place. The post of his Private Secretary was filled by arrangement between the Judge and Professor Nadarajah.

A more unlikely pair of friends could not have been found; one, an outgoing, towering six foot four inch, 250 pound rugger player for the CR & FC and All - Ceylon (I used to refer to him as Justice in concrete) who had just barely got a degree from Oxford University; the other, a shy, scholar with brilliant academic credentials but no sporting achievements whatsoever. But they had great respect for each other - Nadarajah for Gratiaen's lucid, elegant and masterly judgements in every branch of the law, and Gratiaen for Nadarajah's deep scholarship, especially on the intricacies of the law relating to fideicommissum. The job, for one year between passing the Advocates Final Examination and enrolment as an Advocate, was a sort of unofficial prize for someone who obtained a good law degree. The first holder of the job was Shinya, then myself and next Chris Pinto, later Legal Adviser to the Foreign Ministry and an acknowledged authority on the Law of the Sea. In 1957 Justice Gratiaen stepped down from the Supreme Court and became Mr. S. W. R. D. Bandaranaike's Attorney General for two years before leaving the country to practice before the Privy Council in London with huge success until he died in 1971.

Justice Gratiaen and Justice E. H. T. (Theodore) Gunasekera, father of the well known lawyer, S. L. Gunasekera, often sat together on a Divisional Bench. They were friends. They shared a puckish sense of humour. Both were fair - minded, thoroughly decent men of exceptional ability. Justice was safe in their hands. They were kind to juniors who always hoped their cases would come before them. I used to go with Justice Gratiaen to his court every day to listen to the arguments. On one such routine day in 1955 an appeal was taken up in the early afternoon before him and Justice Gunasekera. It was a land case. H L stood up and said he was holding Felix's brief for the appellant and that Felix was held up in another court. In such circumstances Judges usually allowed the case to stand down so that it could be argued by the retained Counsel. But on this occasion Justice Gunasekera asked H L to carry on with the case. My feeling was, knowing the two Judges as well as I did, that they were really saying - go on, don't worry, we are here, you won't come to grief. H L started. He had done his homework. Often counsel holding a brief for another does not read it in the confident expectation that the case would be postponed. But H L was ready. After about a half hour it was clear that he was making headway. At the end of his argument H. W. (Harry) Jayewardene Q. C., a formidable opponent with a commanding appellate practice, was called upon to reply and had to struggle to stay afloat. Judgment was reserved, and delivered later. The appeal was allowed. That afternoon when Justice Gratiaen returned to his chambers he said to me: "Kadi, who is this chap H. L. de Silva. Do you know him?". I said I did. "What sort of degree did he get?" "Not one as good as he should have got. He only got a pass", was my reply.

"Degrees don't matter", said Justice Gratiaen with the certainty that comes from personal experience. "He is better on his feet than Felix Dias. Go and ask him whether he would like to join the Crown" (that is, the Attorney General's Department). Off I went to look for H L in the Law Library. I found him and gave him the Judge's message. He was disbelieving. He thought I was pulling his leg. I told him it was serious. He said he would think about it. Next morning he told me that he would accept, still a trifle incredulous. I reported back to Justice Gratiaen. He picked up the telephone and spoke to Mr. T. S. Fernando Q.C., Solicitor General. "Sam, I have found a good man for you. His name is H L de Silva. Why don't you send for him?" Some of the Judges had an understanding with Mr. T. S. Fernando that they would look out for young lawyers to join the Department. The rest is history. H L became a Crown Counsel. It did not take him long to make his mark. The Attorney General's Department is an excellent training ground for young lawyers because early in their careers they are entrusted with the conduct of litigation. They are soon, and often, on their feet and develop courtroom experience much earlier than their colleagues who go straight to the unofficial Bar.

Speaking of the early fifties I remember S. J. V. Chelvanayakam Q. C. the founder of the Federal Party, who had a large civil practice in the original courts, before politics consumed his time, moving from court to court in the course of a busy day - framing issues in one court, leading evidence in another, cross - examining a witness in a third, arguing a short point of law in a fourth and making closing submissions in a fifth. That is the kind of punishing routine that a busy original court practice involved. On the criminal side I remember two scintillating cross-examinations - one by G. G. Ponnambalam Q. C. the most sought after defence lawyer after the legendary R. L. Pereira K. C., of Scotland Yard's Inspector Godsell in the famous Ranjani taxi cab murder case - the first finger print case in Ceylon. After thoroughly demolishing Godsell's evidence, G G walked up to him as he was stepping down from the witness box, took out his solid gold cigarette case and grinning mischievously offered him a cigarette with the remark "No hard feelings, Godsell?". The other was Dr. Colvin R de Silva's elaborate, delicate but devastating cross - examination, in the famous Sathasivam murder case, of a highly respected witness, Professor Milroy Paul, who had to be handled with extreme sensitivity in view of his standing in the profession. Sathasivam, the famous cricketer, was indicted for the murder of his wife. High society gossip had hanged him from every lamppost in the city. Justice Gratiaen presided over the trial before a special jury. Dr. Colvin R de Silva defended him. Satha began the case a villain. The West Indian cricket team visited him in jail. Upon acquittal he was carried shoulder high out of court by his supporters - a hero once again. It is said that Colvin lost his Wellawatte Parliamentary seat because irate Tamil opinion punished him for securing Satha's acquittal.

One day in the early sixties H L fell into the Beira Lake. No, no, not because he was "drunk and disorderly". Certainly not! What happened was that H L, as Crown Counsel, had gone to the old Secretariat for a consultation with Felix Dias Bandaranike who was Minister of Finance in Mrs. Sirimavo Bandaranaike's first government. On his way out, in blinding monsoon rain, his car fell over the edge of the road that runs alongside the Secretariat building into the Beira at the basin end. How he got out, whether through a window or a door, I do not know. Swimming was never one of H L's accomplishments. But get out he did, Houdini - like. Experience in wriggling through loopholes in the law might have helped. What an unspeakable tragedy it would have been had such a promising legal career perished in the murky waters of the Beira on that rainy day. By the end of the sixties H L was the star of the Attorney General's Department on the civil side, leading for the Crown in major writ applications, constitutional and other civil matters.

H L left the Crown in 1970 and went to the unofficial Bar. He had already established a reputation as a skillful advocate. Soon he was in demand in the appellate division of the Supreme Court in civil matters. At this time the legal arena was full of giants. H. V. Perera had died in 1969, but the others were there. Among them the following Queen's Counsel: Norman Weerasooriya, G. G. Ponnambalam, C. Thiagalingam, E. G. (Guy) Wikramanayake, S. Nadesan, Harry Jayewardene, George Chitty, P. Navaratnarajah, and that very special person, that great advocate, Dr. Colvin R de Silva, who never applied to become a Queen's Counsel on political grounds his opposition to the British Raj. These men were colourful, charismatic figures, larger than life when I look back over the years, the fifties, sixties and seventies, when they occupied centre stage. Various tales of their prowess, wit and ingenuity grew around them. There was an air of sparkling conviviality in Hulftsdorp in those days. Cases were fought hard in court, no quarter given, no quarter asked, but outside the courtroom there was much fellowship and bonhomie.

Counsel travelling to the outstation courts ended up in the Rest House after the days work, eating and drinking together. On one such occasion the gigantic Noel Gratiaen was seen walking to his car with the diminutive Normie Weerasooriya tucked under his arm. George Chitty was fond of pink Studebakers, changing cars every year, gold watches and expensive cameras, music, art, and philately. He was well versed in forensic science, ballistics, surgery and woodwork. George was known to read his briefs on his feet. Once in a murder appeal he had spent thee days mainly reading out to the court large chunks of evidence while he was trying to formulate a winning argument. One of the judges, trying to stop him, said: "Mr. Chitty, we are in possession of your argument", the classic judicial strategy for choking off Counsel. "That cannot be, my Lords, because I have not yet reached it", came George Chitty's reply. George was unflappable and unstoppable. While traveling to Nuwara Eliya for a case he started reading his brief at Ramboda. 

But after he had cross - examined the first prosecution witness the case usually collapsed. He was a suave and deadly cross - examiner, politely devastating. While arguing the appeal in the famous Kularatne murder case, the presiding Judge asked "You mean to say that the Judge could have made such an elementary mistake?". Pat came George's superb reply: "My Lord, no one thinks less of a Judge because he made a mistake. Nor less of a mistake because it was made by a Judge". Another Chitty gem was this, quoted by Justice A. R. B. Amerasinghe in his book on the Supreme Court of Sri Lanka. It was a rape case and Chitty suggested that village damsels were more sophisticated than some might wish to believe and that there was no question of outrage of modesty in the case. The judge said the girl was only fourteen and therefore Counsel's suggestion was unacceptable. George Chitty's reply was: "While I would most respectfully bow to your Lordships superior knowledge of the ways of village damsels, yet age per se is not the most important consideration. Have we forgotten that Juliet had a torrid affair with Romeo at twelve?. There can be no hard and fast rules in the matter". A moment's hush. Loud laughter from the Bench. After trying hard to get a difficult opponent to accept a settlement, finally George succeeded when his opponent turned to the judge and said: "To that proposal, your Honour, I cannot say nay". George turning to him scornfully said: "Certainly not, unless you are a horse".

In those days seniors were liberal with the drinks in chambers after consultations. C. Thiagalingam had a dog and a faithful peon, the latter named Panikkar. The dog sat under his master's table. Thiagalingam often bullied his clients mercilessly in order to get them ready for cross - examination by the other side. Often he barked at them. The dog would bark louder. There was pandemonium in chambers, Panikkar was summoned to restore order. Clients were in tears. Some of them told their Proctors to withdraw the brief although good money had already been paid as a retainer. The Proctors would say: "Don't do that. If he gives you hell in his own chambers, think what he will do to the other side". True enough when the case started Thiagalingam invariably gave the other side hell. Thiaga offered a drink to his juniors from heavy cut glass decanters. But he watched them pour with an eagle eye. If they poured too much he would shout, in classical Tamil, "Aday" (meaning hey you, stop, that's enough).

P. Navaratnarajah's chambers after a consultation often resembled a tavern at closing time. He was generous with his Black and White. Juniors walked groggily to their cars; the senior tottered back into his domestic quarters. But next morning the team was fit and fresh and alert and up to the usual tricks of District Court practitioners. Sam Kadirgamar and Aelian Kannangara were also generous dispensers of the Scottish libation.

Hulftsdorp was famous for banter between Bench and Bar. A pompous judge newly arrived on the Supreme Court Bench had the temerity to say to the revered H. V. Perera: "Your arguments are going in through one ear and out through the other". "I understand, my Lord," said Mr. Perera, "perhaps there is nothing in between".

In the seventies H L was making his way up the ladder with a growing practice in the Appeal Courts. In the eighties together with Harry Jayewardene Q. C. and C. Renganathan Q. C. he had become one of the leaders on the appellate side with a large all - round civil practice. In 1981 he was appointed a Senior Attorney - at - Law (later President's Counsel) in the first batch of Silks after the last Queen's Counsel had been appointed in 1967. In commercial appeals he was often pitted against K. N. (Kasi) Choksy P. C. the two of them also led their respective teams in the gruelling election petition that Mrs. Sirimavo Bandaranaike had brought against President Premadasa after the 1989 Presidential elections.

In the nineties H L had reached the pinnacle of his career, and he remains there. There is always a scramble, in the earliest stage of anticipated litigation, to retain him for a possible appeal. This was reminiscent of the scramble to retain H V Perera in the fifties and sixties. The question asked then was on which side is H V. The question asked now is on which side is H L. One day while walking down a corridor with Colvin I asked him to which court he was going. He said that while waiting for a case to be taken up in one court he was going to another because Mr. Perera (as he always referred to him) was "on his feet" in that court. In recent years I have heard juniors with time on their hands say "Let's go to court x because H L is on his feet". At the Bar these are the hallmarks of pre - eminence.

In H L's work at the Bar there was a dimension that was absent from H V's. In H V's heyday human rights litigation was unknown. H L has shown a strong commitment to the advocacy of moral issues, the defence of rights and liberties, underpinned by his deep Protestant faith. H L is a lay preacher. I would say that in recent years he shares with Dr. Colvin R de Silva and S. Nadesan Q. C. this admirable quality of fearlessly going to the aid of people in need, victims of rank injustice.

From 1940, after the famous Bracegirdle case in which Mr. H. V. Perera took on the British Colonial Government and won a sensational victory on behalf of an Englishman who had fallen foul of the State, H V was acknowledged by the Bench and the entire Bar as a peerless advocate. In 1966 when he reached the 50th anniversary of his call to the Bar there was a largely attended ceremony at the Grand Oriental Hotel, overlooking the harbour. I attended it. Glowing tributes were paid to H V. On his death in 1969 praise of the highest order was showered on him. Consider what his contemporaries had to say about him. G. G. Ponnambalam, Q. C., said "with his passing away, a void is created which I cannot see being filled in the foreseeable future". Dr. Colvin R. de Silva said: "Ceylon has never lacked able lawyers. We have often had great lawyers. In my view, H. V. was the greatest of them all." A. C. M. Ameer, Q. C., said: "If ever there was one who bestrode the legal world like a colossus it was H. V. He was indeed more than a man, he was an age." Sir Lalita Rajapakse, Q. C. put it in this way: "To say that he was an intellectual or learned would be to underestimate his ability. There is one word that would do him justice. That is the word 'genius'. He was the brainiest Ceylonese of the century. Such men are few and rarely are they born." And N. E. Weerasooria, Q. C., said: "It has been my privilege to see the great lawyers of this century in action. I can recall the elegance of Bawa, the force of A. St. V. Jayewardene, the subtlety of E. J. Samerawickreme. Mr. Perera combined in himself all these qualities and added to them a distinction of his own." H. W. Jayewardene, Q. C., described H. V. as "the maestro of Hulftsdorp". E. F. N. Gratiaen, Q. C., who knew him both at the Bar as a colleague and heard H. V. when Gratiaen served on the Bench said, "One of the immortals is dead."Members of the Bench shared the view that H. V. Perera was a most extraordinary lawyer. Chief Justice H. N. G. Fernando was of the view that "the death of H. V. marked the end of an era in Hulftsdorp". Chief Justice Abrahams once said that H. V. would have been "an adornment to any Bar, in any country, in any age".Chief Justice Sansoni said: "He was what I would call a lawyer's lawyer. If I may explain this, he never appeared in a trial case, either in a civil or in a criminal case. He probably never addressed a Jury. His Court work was confined entirely to the Appeal Court where cases are decided purely on arguments addressed to the Appeal Judges. Such a practice provides no opportunities for playing on the emotions; it is concerned entirely with arguments addressed to the intellect. It calls for a complete, accurate and profound knowledge of the law in all its branches; for a mastery of the law and facts involved in the particular case; for an acute mind and a logical approach to the questions that arise for decision. It requires an ability to present a clear argument in a manner which will win the attention of the Judges and convince them of its correctness. Lastly, but above all, the lawyer in the Appeal Court, as elsewhere, must have the confidence of the Judges. He must be frank and honest in everything he says. Mere cleverness will take him nowhere, for the relationship between the Bench and the Bar is so eminently one of intimate collaboration where mutual confidence is essential. I say without hesitation, that throughout his career, the Judges trusted Mr. Perera completely. They knew that he would never mislead or deceive them on any question of law or fact and that in every statement he made they could rely on him to be fair and honest. When you have found a man who is master of the law, an eloquent speaker with the gift of presenting a case attractively, a good debater with a razor-sharp intellect, you are on the way to finding a clever lawyer. But if that man also has, as Mr. Perera had, the moral qualities of honesty and fairness which will win for him the entire confidence of the Judges and his opponents, you have found the great lawyer. And this is precisely what he was." (quotation from the History of the Supreme Court).For someone of my generation the making of a comparison between H V and H L is inevitable, whether it is fair to do so or not. That is why I have referred so extensively to H V Perera. H L is also a lawyers lawyer. He too has the qualities of honesty and fairness that have won for him the trust and confidence of the Bench. He too is "a master of the law, an eloquent speaker with the gift of presenting a case attractively, a good debater with a razor sharp intellect".

I would say that at this stage of his career, H. L. de Silva is the worthy heir to the mantle of H V Perera with the full acceptance of the Bench, the Bar and the public. That is the highest tribute, a well deserved one, in my opinion, that I can pay to H L on the 50th anniversary of his call to the Bar.

 

http://www.priu.gov.lk/news_update/features/20030711legend_making_h_l_d_silva.htm


 

H.L. de Silva, a giant in the law

 

by Rangita de Silva de Alwis - Daily News Wed Apr 16 2003

 



H. L. de Silva

In the late 1970s at a time when few believed that the Sri Lankan Supreme Court was institutionally capable of initiating fundamental constitutional change, H.L. de Silva strove to transcend the narrow doctrinaire views on judicial review.

 

In fact, the transformation of constitutional interpretation from a rigid, change-resistant one to a more progressive one in the eighties can be attributed in large part to H.L. de Silva's sharp insights and persuasive advocacy which helped shape a new rights consciousness on the part of the Sri Lankan Supreme Court. In doing so, it would have been impossible for him not to incorporate his deepest values into constitutional interpretation. This note attempts to abstract some of the philosophical perspectives H.L. de Silva brought to his legal advocacy.

 

The study of a particular, focused era of Supreme Court can be very exciting. Every era is characterized by a few dominant legal personalities. H.L. de Silva led this movement to change the way we think about constitutional lawmaking, the way a man of great insight and wisdom does, with humility. Most of all his beliefs can be summarized in the words of Justice Brennan, when he wrote: "The genius of the Constitution, rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs."

 

Bill of rights

For most of Sri Lanka's constitutional history, the Supreme Court had refused to give life to the Constitutional bill of rights. Even though a unique feature of the 1972 Constitution was the incorporation of a bill of rights in to limit state power, these rights were hardly justiciable. The 1978 Constitution through Article 126 vested the Supreme Court to give relief in infringements or imminent infringements of fundamental rights.

 

An instrumental force in the development of constitutional rights jurisprudence, H.L. de Silva, gave life to a bill of rights which would otherwise have remained largely symbolic. One of the most significant achievements of H.L. de Silva was to make the equality clause a formidable weapon in the effort to oppose a series of major assaults on civil liberties. Largely due to his efforts the civil liberties decisions of the 1980s transformed Sri Lankan constitutional rights landscape.

For the first time in Sri Lankan history, the Supreme Court demonstrated its concern for civil liberties. It paid new attention to, in the words of Justice Brennan, to the "essential dignity and worth of each individual". Through this process, the Supreme Court also redefined to some degree Sri Lankan political discourse. The link between judicial review and democracy was strengthened for the first time, as for the first time the Supreme Court carved out a role for itself a role to review acts of government.

 

Equal protection

Throughout his career as appellate counsel, H.L. de Silva by giving an expanded reading to rights, especially Article 12 (1) and (2) of the Constitution which guarantees the right to equality before the law and the equal protection of the law, strove to remedy injustice and unequal treatment.

Reviving the equal protection cluase, H.L. de Silva chartered a litigation strategy to make equality pivotal to an understanding of justice. His painstaking research and historical investigation and legal scholarship unmasked contradictions in the laws and his prodigious research showed the way in which law can be used to right a wrong.

 

What is groundbreaking about his legal advocacy was that by arguing for the enforcement of these laws he gave legal validity to norms of equality hitherto dormant in constitutional provisions. His seminal arguments in the Ruvini Perera case, where he held government classifications to the litmus test of equality, spawned an era of fundamental rights litigation in the country which in turn resulted in a rich jurisprudence of anti-discrimination case law. Even when he was unsuccessful in court he succeeded in exposing the deficiencies of the system.

 

One of the most important intellectual influences on the Supreme Court, H.L. de Silva began an explosion of litigation based on the equal protection caluse of the Constitution, beginning in the 1970s urging the judiciary to protect individual rights against State power.

 

Equal protection analysis in the United States proceeds primarily along two tiers of review. State action infringing upon fundamental rights or employing a suspect classification is subject to strict scrutiny. Strict scrutiny creates a presumption of constitutionality, which can be rebutted only by establishing both a compelling state interest and a tight fit between the means chosen and the state objective.

 

On the other hand, classifications not drawn on a "suspect basis" are subject to a less intense scrutiny which demands that the government had at least a "rational basis" in making a certain classification.

 

Public policy

Entering the real world of public policy in the landmark case of Perera v. UGC, H.L. de Silva urged the supreme court to take searching view of the equality clause and argued that in the case of university admissions when two sources are assimilated into one class there can be no reference to the original source in choosing individuals for admission.

H.L. de Silva's rationale was that drawing its source from US constitutional jurisprudence, classifications in law must be reasonable and must have a rational relation to the object sought to be achieved by law.

 

In other words, his test argued that a policy which results in disproportionate exclusion of a groups of people would be found discriminatory even if it could be related to a non-discriminatory intention of the policy makers. He argued that the admission scheme to enter the University which gave only 3% of the seats to those who pass on merit violated the equal rights provision of the Constitution.

 

H.L. de Silva's arguments triggered novel question about constitutional protections which generated tidal waves of reactions. During his tenure as one of the leading constitutional rights lawyers in Sri Lanka, the Supreme Court to exercise its review power to examine classifications based on some "suspect" characteristics.

To survive equal protection attack, the different treatment of two classes of persons must be justified by a relevant difference between them and the classification must be related to a legitimate state interest. He often argued that nothing opened the door to arbitrary action so effectively as to allow the government to classify groups without at the minimum rational basis related to a legitimate governmental interest for that classification.

 

Pluralist theory

H. L. de Silva vigorously mined and litigated the equality clause, thus enshrining the constitutional guarantees of the equal protection of laws, but the range of H. L. de Silva's influence on constitutional law-making went beyond equal protection jurisprudence. His arguments expanded the protections of freedom of speech and press and accorded defendants expanded constitutional protections.

 

Using pluralist theory, H. L. de Silva argued that an activist court possesses instrumental value in Sri Lankan democracy. Given the breath of interests represented, an activist court can enhance both stability and the quality of policymaking. Even though he recognised fully the Supreme Court's role in constitutional decision making, it's legitimate and its desirability, he strongly believed that the Supreme Court should stay away from making choices based on competing political interests.

In arguing against discrimination of political parties in Gooneratne and Others v. Chandrananda de Silva, Commissioner of Elections he was making an argument for judicial restrain in entering the 'political thicket'. In Bandaranaike v. Weeraratne, H. L. de Silva argued and was successful in convincing the Court of Appeals that the Special Presidential Commissions of Inquiry Law No. 7 of 1978 could not have retrospective effect.

 

Dramatic example

Some cases are a dramatic example of a consciousness-raising phenomenon that occur quite often in the constitutional litigation process. The struggle of equal rights and individual rights raise questions involving the boundaries of political struggle, as well as the parameters of legitimate criticism of government actions. In his submissions as chief counsel in the presidential election petition of 1989 he argued; "This case transcends the domain of private rights and concerns the rights of the whole nation.

It has a third dimension, namely, the rights and interests of the citizens of his country, the great silent majority... By its very nature it is a case which relates to the most vital aspect of our system of government viz its democratic character, the freedom of franchise and the right to a fair and free election which lies at the very heart of a democracy.

 

...So having regard to the vital issues which concern the public interest and the rights of the people this litigation transcends any partisan interests and assumes a public character more than other election petitions..."

 

Concerned

On the other hand, de Silva was concerned that the separation of powers between the legislative, executive and judicial branches of government. In several cases, including the recent Nineteenth Amendment case he was examining what role the courts should play in preserving the barriers against combination of powers and the maintenance of checks and balances. To a certain degree his arguments show that ultimate constitutional issues should be best resolved by the political process.

In the Nineteenth Amendment case he argued that "political questions" should be best left to be resolved by the people. Constitutional scholars have often argued that the US Supreme Court "expropriated" the presidential elections in the Gore v. Bush decision and thus created a crisis of legitimacy. At the same time, H. L. de Silva's view of judicial review was one which in John Hart Ely's terms would advance the notions of "Representation Reinforcement".

The judiciary to H. L. de Silva represented the voice of the marginalised and in the non interpretivist tradition. The importance he placed on the voice of the people is clear when he argued before the Supreme Court in Bandaranaike v. Premadasa that "an election petition inquiry is not merely a contest between two litigants, not an investigation in which the petitioner and the returned candidate alone are concerned, but the voters". The court's decisions are often a vehicle for initiating and furthering a continuing colloquy with the political institutions and with society at large.

 

Normative value

The value or legitimacy of the court depended on whether it can protect "discrete" and "insular" groups which lose out in the political process and adds constructively to the number and diversity of arenas in which groups can regularly and effectively advance their interests. In this pluralistic system, judicial review is neither deviant nor illegitimate, but adds stability to a majoritarian government.

 

This was to H. L. de Silva the normative value of the Supreme Court. H. L. de Silva's assault on conservative thinking has made him one of the greatest architects of constitutional liberties. His victories in landmark Supreme Court cases outlawing discrimination and politically motivated state policy has made it possible to hold the state accountable to certain constitutional guarantees.

 

H. L. de Silva was one of the forces that motivated the court to abandon a classical legal theories and to embrace a more progressive jurisprudence starting in the late 1970s.

 

Despite the fact that the Sri Lankan Constitution lacks a provision on due process rights integral to the protection of personal liberty, H. L. de Silva strove to broaden the ambit of what constituted State action, thereby pushing the boundaries of accountability by the State. In cases on torture, he persuaded the Supreme Court whenever acts of torture was impliedly authorised by the state or condoned by the state both the state and the individual should be held liable.

 

Pre-eminent lawyer

H. L. de Silva in much of his tenure as the pre-eminent constitutional lawyer of his times made an effort to unclog, rather than to thwart the expression of the majority will.

 

The highest and most complex attribute of judicial review is its potential ability to help a nation progress in the light of constitutional principle: not only principles that might need to be applied to new circumstances, but principles that might grow, develop and expand. This is the underlying promise of judicial review to protect those discrete and insular groups that lose out in the political process.

 

At the same time he believed that the judiciary should stay clear from entering the political thicket to decide on political questions.

That would be inconsistent with the structure of a democratic government. A court driven by political loyalties reaches arbitrary and idiosyncratic decisions. And as Felix Franfurter argued, "the independence of the judiciary is jeopardised when courts become embroiled in choosing between political pressures".

The court's decisions themselves help to shape a national consensus.

 

A theoretical analysis of the decisions of the Warren Court, considered the most progressive in US history, has often revealed that though it is undoubtedly true that while the Warren Court was willing to insist on a course of action notwithstanding considerable public disagreement, the Court was sensitive to the perceived needs of the country. Thus contrary to popular belief, rather than leading to judicial tyranny, judicial activism can ensure democratic governance based on pluralist theory.

Few legal scholars have toiled to reinvent law as a powerful force for social change as H. L. de Silva. His work helped push the frontiers of constitutional law at a time when those boundaries of the law were considered inflexible.

 

Because of the challenge H. L. de Silva took up and spoke to, a program of constitutional reform almost revolutionary in its aspiration and, sometimes in its achievements was launched.

 

On this his fiftieth anniversary with the Sri Lankan Bar it is important to reflect on his philosophy and to look at how he helped turn a doctrinaire theory of equality into practice and the theory in practice, which in turn, produced a richer doctrine of the constitution.

The significance of H. L. de Silva's legacy of constitutional jurisprudence lies in the fact that even when one disagrees with his arguments on a certain constitutional interpretation they continue to provoke debate and is certain to spur further constitutional change and inspire future generations of judges, lawyers and students.

(The writer is the Director of international programs with a legal research organisation in Boston which contracts with the US Department of State. She recently testified before a US Congressional Committee on the enforcement of women's rights in China.)