|Friday, 11 July 2003|
Eminent lawyer celebrates 50 years at the Bar today : H.L. de Silva P.C - a legend in the making
by Lakshman Kadirgamar P.C, M.P.
H.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) Goonesekera 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 Vaithinathan, Gilbert Jayasuriya (all of them no longer with us) and others.
The fourth intake in 1950 included, among others, Ranjith Abeysuriya (later President's Counsel and chairman of the National Police Commission) and myself. The faculty was very small in those far off days. When HL took his law degree in 1951 the entire group of four intakes that overlapped with him could not have been much more than 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 (he had become 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 a 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.
Epitome of a scholar
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 Cambirdge 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 cigarettes known as "Three Roses" he held forth without a note for more than 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 that he leapt out of bed at 4.00 a.m., lit a "Three Roses" cigarette, 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 D.S. Senanayake, for his common sense and understanding of democratic values of the British sort, and for the legal acumen 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 judgement 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 Sri 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. HV 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 1924. I first met him in 1960. He used to say that all the relevant case law had been made before 1942.
Today, HL 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, notwithstanding 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, sometime 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 HL 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 HL 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 HL was shorter.
He had a friend in Felix Dias who, in HLs 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 HL. It was while he was holding one of Felix's briefs in the Appeal Court that Fortune smiled on HL. 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.
Sense of humour
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. HL 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 HL 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. HL 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 HL was ready.
After about a half hour it was clear that he was making headway. At the end of his argument HW (Harry) Jayewardene Q.C., a formidable opponent with a commanding appellate practice, was called upon to reply and had to struggle to stay a float. 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.
On his feet
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 HL 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. HL 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 remembers 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 Scotlandyard's Inspector Godsell in the famous Ranjani taxi cab murder case - the first finger print case in Ceylon. After thoroughly demolishing Godsell's evidence, GG 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 HL fell into the Beira Lake. No, no, not because he was "drunk and disorderly". Certainly not. What happened was that HL as Crown Counsel, had gone to the old Secretariat for a consultation with Felix Dias bandaranaike who was Minister of Finance in Mrs. Sirimavo Bandaranike'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.
Produced by Lake House