He never denied to others the rights and freedoms he so cherished

Tribute to Deshamanya H. L. De Silva P.C. on his first death anniversary
By Sena Wijewardana

It is one year since H.L. passed away and it is befitting that we recall his life once more. I got to know him rather fortuitously when I was approached to become a part of a three member Sri Lankan delegation led by Justice T.S. Fernando QC to the Asian African Legal Consultative Committee meeting held in Delhi in the sixties.

At the time I was the lecturer in Public International Law at the Law College and H.L was the Attorney General’s Department specialist on the subject. There was instant and perfect chemistry : we shared a deep interest in the law, a set of values in life and a keen sense of humour which enabled us to laugh at many things , good humouredly, at people and above all at each other- what an infectious laugh he had.

It was a friendship that never looked back from that day to the last day we parted company – knowing, that it was the last- just before he died when he so touchingly presented me a copy of a book he had written inscribed “to my good friend of many years.” And, so we were, through fifty odd years though regrettably parted for long periods when our careers diverged.

Sri Lanka is more than most places I know full of important people and despite Buddhism being the main culture of the land the ego rides very high. Of course, ego is needed for achievement but one of H.L.’s endearing qualities was to achieve without taking himself too seriously.

He was essentially a private, not a public, man. It was not the public image that really mattered to him but something much more sacred, the affection and respect of those who saw him at close quarters and moved mostly closely to him.

Public image is more often than not a matter of packaging but private respect is for “real”. It cannot be captured in larger than life-size “cut outs”. His spiritual values, his gentle but fearless personality, his manifest integrity earned plenty of respect from those who knew him. The humility was respected and the firmness was admired

Others are more able than I am to speak about his achievements at the Bar at the height of his career and the important cases he appeared in. But in a long career in the law myself, I must record that of a select group of the most impressive lawyers I have worked with and witnessed at close quarters, both in and out of the country, two were Sri Lankan: H.V. and H.L. What made them great was not just the sheer force of their intellect but their intuitive good judgment and above all, their uncompromising integrity, intellectual and otherwise.

It is difficult for me to imagine good judgment without integrity. H.L. was a believer and a reader, H.V. was not, but both were truly spiritual in the highest and most civilised sense of the word. Two of our nation’s real heroes.

H.L. and I agreed and disagreed on many matters. Our conversations lasted right up to the end. On the last occasion we met he reminded me of one such disagreement. He believed that the war was a necessary evil and had to be gone through. Whilst agreeing that finally this was inevitable , I believed and often told him, it could have been avoided if we had acted correctly, according to principle and faced up to our responsibilities at the right time in the right manner.

We argued about this over the years. We knew that we were talking inter alia about the Kodesweran Case where we were on opposing sides. This was a simple case where Kodeswaran, a public servant, was denied his one hundred rupee annual increment because of the implementation of the Sinhala Only Act. Kodesweran had failed to pass his Sinhala test. It was wrong; it was discriminatory of a class.

We had a Constitution at the time which in a relatively succinct and well known section 29 prohibited discriminatory legalisation. We all know when something is adversely discriminatory and one does not need a large amount of pedantic reasoning. It is a judgement call. In this case our judiciary failed at the highest and ablest level. We should have dealt with the substance and held that it was discriminatory and may well have saved ourselves of years of agony and death.

The case came up for hearing with Justice H.N.G. Fernando presiding. I was the only Sinhala counsel appearing on behalf of Kodesweran and I felt obliged to appear free. There was an array of distinguished Tamil counsel led by C. Renganathan QC. Mr. Renganathan lived in a row of three small houses in Wellawatte. In one he slept. In one he ate and entertained and in one he housed his library. For the duration of this case, he moved his bed into his library. It meant so much. H.L. was junior counsel to the then Attorney General and was instrumental in taking an ingenious preliminary objection that Public Servants cannot under British Constitutional law sue the Crown for emoluments.

He was wrong in its application to Sri Lanka and it was finally reversed in the Privy Council but it was too late. In the meantime Section 29 had been repealed by Mrs Bandaranaike (SLFP) acting with the support of Colvin R de Silva (LSSP). I think we had a chance and we missed it. It was right of course for H.L. to take the point. That was his duty and he always did his duty to the fullest. But Justice H.N.G. Fernando, one of our cleverest, ablest of judges stumbled in his judgement. Would anyone today deny that that we must have the freedom to conduct our government business if possible in all three languages?
H.L. was a man of slight build but great character.

He did not do something because he thought it was the popular thing to do. Let me give one illustration. When the Lake House take over legislation was being questioned before a spurious Constitutional Court with Justice Jaya Pathirana who had voiced his support for the take over as a member of the court I asked H.L. whether he would appear on behalf of Lake House as important issues were at stake. He had just come into the private Bar. It was by no means a popular cause at the time but I am proud to vouch for the fact that there was not a moment of hesitation in his professional answer. Several other friends who have later achieved great eminence in public life of our country excused themselves saying they were likely to be victimized or deprived of state patronage - an unfortunate perception that continues to this day. It was our fortune to have had H.L. in our midst for so long and generations of lawyers will emulate his example.

Let me make one other point. It has been said and rightly that he was patriotic and loved his country. But it will be clear from what I have written that this was a relatively minor virtue in comparison to his other qualities. It is good to be patriotic so long as we do not paint others into the corner of being unpatriotic.
H.L. never did that. He was made of sterner stuff than the kind of jingoism we see too often these days. He was patriotic in the sense of wanting to ensure, as most do, the country stays as a unified whole.

To my knowledge he never denied to others the rights and freedoms he was so passionately attached to himself. He was always willing to put under the glare of sunlight any argument including one of injustice because he knew well that if true it has to be corrected and if false, exposed. This is another mark of a great modern lawyer reflective of international standards of mankind, not any particular country, and he fully lived up to that. Another reason then for us to acknowledge his contribution and to emulate him. It is good to remind ourselves of his virtues...

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