Sunday Times 2
Shibly Aziz: A model law officer of the State
Shibly Aziz
It is indeed an honour to be invited to speak a few words in appreciation of a legal giant who bestrode our forensic arena for over half a century.
When we lost Shibly Aziz, Sri Lanka lost a brilliantly competent, fearlessly independent and uncompromisingly ethical lawyer.
Much has been said and much more will continue to be said about the forensic ability of my friend Shibly.
I, therefore, will speak of the Shibly I knew.
I first met him as a handsome schoolboy, two years junior to me, always with a smile that had a tilt of amusement. A smile that belied a razor sharp mind taking in all that was happening around him.
He foreshadowed his academic excellence during his school career as he progressed through University, both in Sri Lanka and post-Graduate studies in London.
I next met up with Shibly when he joined the Attorney General’s Department as a Crown Counsel in 1969.
I recall that when E.C.B. Wijesinha revived the Ralahamy drama series in the early 1970s, I was cast in the role of the Hadjiar in the play Fifty-Fifty. The Fez I wore on stage was an old Fez belonging to Shibly’s father which Shibly lent me, but I never returned.
At a social level, Faiz Musthapha, Ranjit Gunatilleke and I who had joined the AG’s Department a couple years before Shibly, along with Priyantha Perera, Tilak Marapana, Sarath Silva, S.L. Gunasekera and Kosala Wijeyatilleke formed a group that met in one of our rooms, usually mine, to enjoy a convivial tea break. Unfortunately, my room was just below that of the AG and our bouts of merriment were often blasted by an irate phone call from the AG.
Before I recount our shared experience as officers of the Attorney General’s Department, I need to commence at the end of my years in the Department.
Along with my appointment as the Attorney General in 1988, the Solicitor General and the Additional Solicitor General were both elevated to positions in the judiciary and I had Tilak Marapana as the Solicitor General, Shibly Aziz as the Additional Solicitor General and UpawansaYapa as the senior Deputy Solicitor General.
While each of them contributed immensely to our conferences in my chambers, for this evening, I will concentrate on the contribution by Shibly.
If I may be permitted to expand on my opening statement, Shibly demonstrated his sterling value in the many situations we faced in our inter-relations with the Executive branches of Government.
It was often the case that a project envisaged by a particular Cabinet Minister, the Prime Minister or the President himself is presented for consideration at a Cabinet meeting.
It usually was a project that the minister had emblazoned as being of immense benefit to the country in general, but I had no doubt that the enhancement of the re-election prospects of the particular minister had not been overlooked in the drafting process.
On occasion, the Attorney General would be consulted regarding compliance of the projected proposal with fundamental rights and protection of individual or group rights.
When I was consulted, I would invariably set up a discussion with Tilak Marapana, Shibly and Upawansa Yapa.
Our role was primarily preventive. We needed to shepherd the path of the project to avoid the snares and pitfalls while negotiating the legal maze.
We would have to advise that some part of the project had to be modified to avert conflict with existing law or else require legislation.
In examining the proposal, we would conclude that some aspects would require legislative action through Parliament. The legislative proposals would need to comply with constraints placed by the Constitution or legal precedent.
We were conscious that if legislation was the chosen route, Article 77 of the Constitution was likely to be triggered. I must say that I am relying on the English version of the Constitution and hope there is no inconsistency with the Sinhala text.
However daunting, it was the duty of the Attorney General to flag any proposed provisions that made potential inroads into Constitutional guarantees.
But to revert to my theme, when discussing the content of the proposed recommendation, we knew that the subject minister would take a dim view of being told that his pet scheme would require amputation.
Tilak Marapana, Shibly Aziz, Upawansa Yapa and I would scrutinise the proposed project and discuss the strategy of working and wording the project to remain within the Constitution.
One option was to modulate the proposal to mask its unacceptable sections in the hope that the offensive aspects would not be noticed.
Shibly would say: “That is dishonest. Not only is it dishonest, it is unethical for us to attempt to circumvent a Constitutional prohibition.”
But if I said that ‘the minister will not hear of the modification of his scheme’ Shibly’s response would be ‘Tell the minister to …’ and suggest something impractical for the minister to perform. Unless, of course, the minister was an accomplished contortionist.
We were only too aware that we had a competent, learned and honourable panel of judges who would vigilantly dismantle any proposed legislation and unhesitatingly strike down objectionable clauses as requiring a two-thirds majority or even a referendum.
I have no doubt about the continued maintenance of the high standards in the judiciary when I was monitoring from afar the reports in the media of the events of the recent past.
Even when legislation was drafted in accord with the Attorney General’s advice, the Bill once published was likely to be challenged before the Supreme Court.
When a Bill was being eviscerated by its opponents before the Supreme Court as contravening Constitutional guarantees and protection designed to promote the wellbeing of the citizens of the State, the Attorney General had to appear as a respondent.
Shibly would prove his ethical rigidity by insisting that the Attorney General’s officers who appear for the respondents owe a duty to assist the court to provide true and honest submission regarding the Constitutionality of the proposal and the need for a special majority or even a referendum.
In no way would Shibly condone the presentation of an argument which might have passed the court but would not be an honest interpretation of the Constitution.
Officers like Shibly were models of the preservation of the standards expected of the Law Officers of the State.
Shibly would have been saddened by the recent developments related to the functioning of the Constitutional Council to which he along with two others representing civil society were among the inaugural appointees.
The Council was designed to discourage potential aspirants to high office canvassing political support to secure their appointment. Such patronage would inevitably impact adversely on their capacity to function impartially.
Politicisation of the process of selection to high public office was sought to be justified on the premise that the minister in charge of the subject needed a Permanent Secretary who shared the minister’s political outlook.
But it did not work. It removed a salutary check on the viability of the proposal and the anticipated benefits.
Such de-politicisation was even more critical when selecting the judges of the highest courts where transparent lack of bias was an essential ingredient to garner public confidence.
Articles 53 and 154 originally empowered the Executive President to appoint the Attorney General and the Auditor General, placing no fetter other than his own conscience on the exercise of his discretion.
However, it was common knowledge that persons of eminence in the respective disciplines of the proposed appointees who enjoyed the private confidence of the President had significant inputs into the process of selection.
After the Council was established, those positions, along with the Inspector General of Police, the Ombudsman and the Secretary General of Parliament, needed to be approved by the Council.
When the Council was approving nominees for the positions of the Judges of the Supreme Court and the Judges and the President of the Court of Appeal, the Council was mandated to obtain the views of the Chief Justice.
I appreciate that this is not a forum to compare and contrast the quality of the appointments made by Presidents past and present, who acted on their sole discretion with appointments made with the sanction of the Council.
Nor this an appropriate forum to debate whether the Council as required to be constituted has, in fact, proved to have been apolitical.
If, in fact, there are flaws, such flaws should be scrutinised by experts and remedied and rectified, rather than by undermining public confidence by open condemnation.
It is essential that public confidence should be supported and maintained to continue the progressive steps in the direction of depoliticisation of appointments to key positions in the judicial and the public services.
I have been asked to recount a few anecdotes from life in the Attorney General’s Department. I have left to the last so that I could shut up and sit down if I am taking too long.
If I may recount some of our mischievous exploits as junior Crown Counsel.
I cannot recall many incidents in which Shibly featured. Most of the time he looked on with an air of amusement at what really were childish pranks.
I remember a scheme promulgated by the Government to enhance the cultivation of manioc by setting up a subsidy scheme. Kosala and Shibly decided to develop an acreage owned by Kosala in the Kurunegala area.
They filled up the required forms and sent them through a messenger. The Registration Certificate arrived, proudly confirming that Shibly and Kosala were “Registered Maniacs”
Our group was occasionally graced by some seniors, notably, Daya Perera, Wakely Paul, Cecil Goonewardene and D.S. Wijesinghe.
As the big matches drew nigh, Cecil Goonewardene and Wakely Paul would enter heated exchanges about the quality of cricket at their respective old schools. Cecil would encounter a narrative about how he took five wickets only conceding twenty-three runs. Cecil told us that the next Monday the pineapple vendor outside S. Thomas’ gates was singing out “veryma nice the veryma nice the pine apple toppee – Cecil Goonewardene pive por twenty three.”
No amount of research into the annals of S. Thomas’ cricket provided information that Cecil had even played cricket for the school team.
Not to be outdone, Wakely proceeded to demonstrate how Vijay Malalasekera scored a towering six at the big match. He made an almighty sweep with an imaginary bat. Sadly, Wakely was no cricketer and got his footwork all tied up and “Oh what a fall was there my countrymen!”
Speaking of cricket in the AG’s Department, in 1974, the AG Victor Tennekoon was appointed the Chief Justice and the Department organised an ‘old boys vs present boys’ match. Percy Colin-Thome, all dressed up in immaculate cricket whites padded up to face the bowling.
The bowler was CJ Victor Tennekoon and a member of the support staff named Kavi Kumar was the head umpire. The ball hit Percy on the pads but was nowhere in line with the stumps. The CJ appealed and Kavi Kumar raised his finger.
Later in the dressing room, Percy was remonstrating with the umpire about the line of the ball. Kavi Kumar responded “I don’t know where the ball was going, but when the Chief Justice appeals, who am I to say ‘No’”
As junior Crown Counsel, our first assignment was as respondents to Appeals from the Magistrate’s Court. We spent the day arguing a variety of matters and came back to find another load of briefs for the next day.
Our supervising officer was A.C. Bunty de Zoysa. When we complained about the workload, Bunty said, “You are appearing for the respondent. You don’t have to read the brief. Just listen carefully while the Counsel for the Appellant outlines his argument.
The Appellant will first have to get the judge to accept his argument before you are called upon to respond.
If the argument is flawed, point out the flaws, but if there are no flaws, concede the Appeal”
We had the benefit of appearing before Judges like H.NG. Fernando, T.S. Fernando, H.W. Thambiah, A.C. Alles, Victor Tennekoon, George Samarawickreme, to name just a few.
If we were up to date on the relevant precedents and were conversant with the facts, they would guide us to ensure that the State did not suffer from our lack of competence.
But if we tried to bluff and cover up our lack of preparation public humiliation bound to be the result.
When we graduated to murder and more trials we had to perform in full gaze of the public and being exposed as being unprepared or incompetent was painful to observe.
We had a Crown Counsel who came a cropper when he tried to bluff his way before Justice E.H.T. Gunasekera. When the defence counsel was cross-examining a witness, the Judge suddenly asked the Crown Counsel “Are You objecting to that question?” “Yes, Mi-Lord” was the prompt reply.
The next question from the Judge “Under which section of the Evidence Ordinance, are you objecting?” floored the Counsel
You may note that I am casting back into the mid nineteen sixties when the Evidence Act was an Ordinance and the usual form of addressing the Judge was ‘Mi-Lord’
E.H.T. then offered to rescue the hapless Crown. “You must be relying on Section 168” “Yes Mi-Lord, 168 and 169’ “Would you please read section 168?”
To his horror and consternation, Counsel realised that there only were 167 sections in the Evidence Ordinance.
I have digressed and should stop talking, but as I speak I can picture Shibly in the audience, spotting the joke before it was cracked but laughing at the punch line.
Let me thank Mrs Aziz and the family for the great honour they have done me and conclude with a fervent wish
The Holy Prophet Mohamed has said “You have not been created to perish, but to remain forever. You only transfer from one home to another when you die”
May you my friend, lie in everlasting peace in your new home in the presence of Allah. Sung to sleep by dulcet and soft voices. A land abounding in all varieties of delicious fruit. A land flowing with rivers of unpolluted water, rivers of milk whose taste never changes, and rivers of strained honey.