S.W.R.D. Bandaranaike

By Lakshman Indranath Keerthisinghe - Attorney-at-Law
This nation never stood in greater need than now of having among its leaders men of lofty ideals, which they try to live up to and not merely to talk of. We need men with these ideals in public life, and we need them just as much in business and in such a profession as law.’ -
Theodore Roosevelt (Honour)

The above sentiments expressed by Theodore Roosevelt, a former President of the United States seem applicable to our nation too. Sri Lanka is fortunate to have many great men serving in the legal profession at the present time as well as those who served in the profession in times gone by.
Although the judiciary is considered as a separate entity from the legal profession, it consists of those members of the legal profession, who choose to serve as judges. The legal profession in Sri Lanka is primarily divided into the official Bar and the unofficial Bar. The official Bar consists of lawyers who serve in the Attorney General Department while the unofficial Bar consists of lawyers in private practice. Lawyers of exceptional ability and long years of experience in the practice of the law are appointed by the President as President’s Counsel on the recommendation of the Chief Justice. Among the legal professionals practising as President’s Counsel in Sri Lanka there have been many great men in the past as well as there are such able lawyers at the present time. Many lawyers have also made major contributions to the legal literature in Sri Lanka.
Some time ago at the time when Justice Sarath Ambepitiya was assassinated, an article titled ‘Justice where art thou fled’ which was very critical of the legal profession in Sri Lanka appeared in a column titled ‘Thoughts from London’ written by Neville De Silva, a reputed journalist, writing from far away London in the Sunday Times (December 12, 2004). Neville de Silva began his thoughts from London with what he termed a perceptive observation made by the subject of James Boswell’s book ‘Life of Samuel Johnson’ which in essence is that Johnson had said that although it is not proper to speak ill of a man behind his back, it would be alright to do so if that particular gentleman were an attorney.
It is well known that only cowards speak ill of men, be they lawyers (gentlemen) or otherwise, behind their backs as such cowardly persons are afraid to grant an opportunity for the men so defamed to protect their integrity and character by the right of reply to any false and malicious statement made by an accuser. It is a basic principle of natural justice known as audi alteram partem, which means that a fair hearing should be granted to a person who is found fault with by another in any manner whatsoever.
Then the thoughts from London go back two centuries or so from Boswell and end up with Shakespeare’s words in Henry VI (Part II): quoted as ‘The first thing we do, let’s kill all the lawyers.” de Silva has failed to realise that Shakespeare wrote these words as uttered by Dick the butcher in his conversation with Jack Cade the rebel, when the said rebel was saying what he would do when he became king (see page 55 of The Complete Works of Shakespeare – Wordsworth Edition – 1996). It is obvious that rebels and butchers who assist rebels would prefer not to have any lawyers around or for that matter such persons would be in favour of the total extinction of law and order.
After quoting the butcher’s words with relish the thoughts become somewhat regretful that society would not accept such a drastic method of extinction of the species, however rapacious the breed is. The question is then asked whether there is a loss of respect for the administration of justice in our society and if so who is responsible for such loss as Mr. de Silva states that it is well known that those who practice law and sit in judgement in our courts are increasingly becoming victims of malevolence. If one who writes such comments were to look into a mirror a part of the answer would be clearly discernible.
It is also relevant to note here that such great men like Mahatma Gandhi, Abraham Lincoln and S.W.R.D. Bandaranaike, who were lawyers were assassinated (as if to make the words of Dick the butcher quoted by de Silva, come true) by ignorant persons who failed to understand the service rendered by such personages. de Silva further states that when a judge is killed (referring to Justice Ambepitiya’s murder) ‘everybody is in a hurry to voice their anger and protest but when lesser people were killed or otherwise suffered injustice they have maintained a deafening silence’.
de Silva should perhaps ask himself the question: ‘Why, when Mahatma Gandhi was assassinated, almost the entire populace of India wailed and some even committed suicide, which did not happen when other people died in India?’ The social reaction to the demise of a person depends on the service that such a person has rendered to society. Thus the Bar Association of Sri Lanka (BASL) and the Organisation of Professional Associations (OPA) both of which the writer is a life member, quite rightly deemed it necessary to call for justice and apprehension of those responsible for the dastardly act of the assassination of Justice Ambepitiya – a call which de Silva seems to find amusing.
de Silva has misunderstood the position of the BASL (the views expressed here are the writer’s own opinions and not those of the BASL) when he states that the leadership of the Bar Association had advised lawyers not to appear for the suspects in Justice Ambepitiya’s murder case and informs the lawyers to acquaint themselves with the UN’s Basic Principles on the Role of Lawyers, the draft Universal Declaration on Independence of Justice, the International Convention for the Preservation of Defense Rights and the International Covenant on Civil and Political Rights.
In the first place all lawyers are not members of the BASL. Thus it cannot advise lawyers in the manner stated by de Silva. None of the members of the BASL had been informed by the BASL by way of a circular, as it is usually done in the event of such a resolution being passed, not to appear for the accused in the said murder. de Silva does not have to pontificate to the leaders of the BASL to refer to international conventions with regard to the right of defense of an accused as Article 13(3) of the present Constitution of Sri Lanka provides that ‘Any person charged with an offence, shall be entitled to be heard, in person or by an Attorney-at-Law, at a fair trial, by a competent court’ and Article 13 (5) provides that ‘Every person shall be presumed innocent until he is proved guilty: provided that the burden of proving particular facts may, by law, be placed on accused persons’.
It is also interesting to note that  de Silva, who quotes with relish the words of Dick the butcher, ‘The first thing we do, let’s kill all the lawyers’ at the beginning of his thoughts, laments at the latter part that the BASL has advised lawyers not to defend the accused in the aforementioned case.
If all the lawyers, who are a rapacious breed, according to de Silva, were to be exterminated as Dick the butcher said, what would be the plight of the accused in the above case? After all is said and done even a critic of the legal profession such as de Silva has finally come to realise the value of the services rendered to their clients by lawyers.
Of course, there are several criteria that govern the acceptance of a brief and an Attorney-at-Law is not required to accept a brief simply because an accused person wishes that such Attorney-at-Law should take up his case. (See chapter XVI Professional Ethics and Responsibilities of Lawyers – Justice A. R. B. Amerasinghe – 1993). Instead of the caption ‘Justice where art thou fled’ stated by de Silva, the legal profession in Sri Lanka would ask de Silva the question ‘Gratitude, where art thou fled?’ as there appears to be a lack of appreciation of the services rendered by lawyers to Sri Lankan society.
Many leaders of Sri Lanka have been and presently are lawyers. The present President and the Leader of the Opposition are both lawyers. S.W.R.D. Bandaranaike, Dudley Senanayake, J. R. Jayawardena and Colvin R. De Silva among others who were political leaders in Sri Lanka were lawyers. In many countries in the world there have been many renowned lawyers who have rendered their countries a memorable service such as Mahatma Gandhi in India and Abraham Lincoln in the United States. Many US Presidents have been lawyers. Of course, the legal profession may not be very popular among the populace, most probably due to the fact that lawyers sometimes charge heavy fees from their clients. Such fees are charged especially in the superior courts for the heavy work load undertaken by lawyers for their clients in the preparation of pleadings and arguments before court.
Many young lawyers who have recently entered the profession have specialised in many modern areas of the law such as cyber law and information technology law. As that great lawyer H. V. Perera once said, ‘there are no brilliant lawyers but only hardworking lawyers’. Roosevelt also stated: ‘The life of duty, not the life of mere ease or mere pleasure – that is the kind of life which makes a great man, as it makes the great nation.’ As Samuel Johnson said in Tour to the Hebrides: ‘A lawyer has no business with the justice or injustice of the cause he undertakes, unless his client asks his opinion and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge (as quoted in Beautiful, Inspiring Interesting Words by Justice A. R. B. Amerasinghe, 2005).
A quick wit is very essential in the practice of the legal profession. Soli Sorabjee a former Attorney-General of India and one of the greatest legal luminaries of India,  at a National Law Conference held in Sri Lanka related an episode in which Justice Krishna Iyer once asked him during an oral submission in Court, the question ‘Mr. Counsel, are you implying that I have been uttering lies?’ Sorabjee had replied: My Lord, if I answer in the affirmative, I will be guilty of contempt and if I answer in the negative, I will be guilty of perjury, therefore I reserve my comments.” Once a former Chief Justice of Sri Lanka Sir Edward Jayatilake, K.C., was hearing the arguments of that great lawyer, H. V. Perera, who was defending a client who had run down a person while driving, and making the point that the brakes could not be applied because of a rupture of a muscle in his client’s leg. The judge said “But, I know people with broken collar bones who get about quite well.” H.V said: “With the greatest respect, My Lord, people do not walk, accelerate or brake with their shoulders.”(See page 352 The Supreme Court of Sri Lanka by Justice A.R.B.Amerasinghe).There are many such episodes that have occurred making the practice of the profession a very rewarding and an interesting experience, but there is hardly any space in this article to cover all such events.
A very great majority of those who are presently engaged in the legal profession in Sri Lanka just as their eminent predecessors have maintained a very acceptable standard and continue to serve Sri Lankan society with great responsibility and ability. Of course as Roosevelt said as quoted at the beginning of this article many more great men are needed in the profession of law.

If the law enforcement authorities take a back seat in enforcing the law it spells the end of a struggling democracy. Whom can the people go to, and what can the people do? The more disturbing question is: what will they do?
“How many times can a man turn his head and pretend that he just doesn’t see?
How many ears must one man have before he can hear people cry?
How many deaths will it take till he knows that too many people have died?…”

Blowin’ in the Wind, Bob Dylan

The life of a nation depends on its governance and the life of the governance depends on its People. The will and spirit of a People can never be subdued for prolonged periods of time either by cajoling or coercion. The human spirit yearns for freedom from captivity, be it physical, intellectual or otherwise.
Political Power is a much misunderstood concept. Power in the ultimate terms of a political situation, is the confidence that the People have in the representative of their power – which comprises the power of the representative – which is in fact the power of the People, and, with the loss of that confidence the power of the representative begins to wane and the waves of discontent begin to spread across the nation. This discontent can never be contained by coercion because within the human spirit there always resides that spark of rebellion against enforced measures of curtailment of legitimate freedoms.
Power in the sense of enforcement cannot be maintained for prolonged periods of time because enforcement of power itself is never self contained but is dependent on other entities for its existence. As such, similar to a chain, power is as strong as its weakest link – its enforcers: and the moment the enforcers abandon post, all power is gone. Political power is the most dependent of all human frailties.
Politics is not a circus. Political elements must realize that they are carving the destiny of a nation and not their own. The gunfight at the OK Corral in the 1800’s where the Earp brothers and Doc Holliday shot up and killed all their opposition on a personal vendetta may have been good at that time in the wild West where the law was gun law for the settlement of personal disputes. But it certainly does not hold good here.
Throughout history most nations have had and will have their periods of war and periods of peace and times of reconciliation. As victors of war the victors always move forward with aggression and confidence but victory lies in the nation and not in an individual or a group of individuals and the spoils of victory in war do not include the right to kill.
An unlawful assembly comprises five or more people with an illegal objective. Every person who joins or remains in an unlawful assembly with knowledge of the illegal objective is deemed a member of that unlawful assembly and is guilty of any criminal act caused by any member of the assembly if the commission of that criminal act was known to be likely in the prosecution of the objective. A lawful assembly becomes unlawful the moment an illegal object is formed. In a case of homicide it is irrelevant as to who fired the fatal shots: every person who joined or remained or formed the unlawful assembly at the time the death was caused, knowing that death was likely to be caused in the altercation is prima facie liable for the causing of that death – be it murder or anything else. If the circumstances show that the causing of death was instigated or intentional then it becomes murder in the absence of an acceptable defence.
Where there is evidence that any person is involved in a murder and such person’s whereabouts are known, such person will as soon as possible be taken into custody by the police and produced before a Magistrate and committed to remand custody. If such person is hospitalized then he will be formally taken into custody by the police at the hospital, and, on the motion of the police, the Magistrate will commit such person to remand custody and remand guards will be placed at the hospital. This is the law of the land.
There are whispers in many quarters and open declarations in others that this procedure is not being followed in certain political cases.  The law enforcement authorities will do well to take steps to enforce the law which is their mandate, irrespective of the political colour of the case. If not, at the end of the day, at some point of time, they will all be held accountable to the people, by the people – by the Nation – and the price will likely be heavy.
I remember an incident where I was returning from Bolgoda along the Madapatha Road from San Michele in the night. The road had no street lamps and suddenly a push cyclist appeared in front of me and started blocking my passage. I kept trying to pass him but he kept on obstructing me and then I realized that he had no lights on his cycle and he was using mine to navigate. We came to an angle on the road and beyond the angle was the marsh and as we approached it I switched off the lights for a few seconds. When I switched them on again the cyclist was not there. I have repeated this to every batch of apprentices that came to my Chamber – the moral of the story being that if you get ahead on the lights of others, you will fall when they are switched off, as will inevitably happen to indentured bureaucracies in the event of a power failure.
The fate of a nation may sometimes hang on the aftermath of the death of one man, unjustly killed, if legal retribution does not follow swiftly. In terms of politics the people’s attention dwells on current affairs and not in the past and as was said long ago, “The evil that men do lives after them. The good is often interred with their bones” (Julius Caesar, Shakespeare).
The bureaucracies in law enforcement will do well to remember:
“In the fire’s dying embers,
My only regrets are these:
Of what I did right nobody remembered;
Of what I did wrong nobody forgot”.
(anon)