Hulftsdorp Hill

5th July 1998

Premadasa and FDB: laws and flaws

By Mudliyar

Rangita de Silva de Alwis delivering the FDB oration

June 23 marked the 74th birthday of the late President R. Premadasa and June 26 was the 12th death anniversary of the late Felix Dias Bandaranaike . Both Mr. Premadasa and Mr. Dias Bandaranaike have contributed much for the development of this country. Mr. Premadasa came from humble beginnings and became the President while FDB as he was popularly known belonged to the aristocracy. FDB's father Justice R. F. Dias was a famous Supreme Court Judge well known for treatise on the Criminal Procedure Code, for his forthright comments and racy wit.

Mr. Premadasa was born at Kehelwatta on Hulfsdorp Hill. The lawyers chuckled when as Premier he revealed that he learnt law by reading old case records thrown into his compound over the walls of the Magistrate Courts. FDB learnt his law at the university and the Law College and was elected to parliament as one of the youngest Ministers of Justice when Sirimavo Bandaranaike took office in 1960. He was the chief advisor after the first coup case, where he showed his prowess by cross examining coup suspects who were senior police officers. Most of them broke down and under the powerful cross examination of FDB, spilled the beans. Ms. Bandaranaike could not do without the tutelage of FDB.

He contributed to the development of the law, and was the chief architect of the administration of justice law. The new approach to civil litigation transformed the archaic laws that were in existence for several decades. There was despair among the litigants, rich or poor, due to the enormous delays it took to complete civil litigation. Laws delays were the rule and the poor due to the delays suffered and lost confidence in the adversarial system of justice.

The previous regimes did not want to implement any reforms as they did not want to earn the wrath of the legal profession. Many decision makers of the government and the opposition came from the legal fraternity. As usual they opposed many reforms for self-serving interests. It was therefore necessary that a person with a vision for the future and a knowledge of the burning problems of the poor be elected to office.

FDB had both and in addition he had an exceptionally brilliant mind and with legal training he could command the respect of even senior experienced politicians and completely ignore the mediocre rustic representatives who came to parliament with the Bandaranaike revolution.

He could afford to become egotistical. He in the process rejected the advice of his colleagues whom he considered to be ignoramus simpletons.

Rangita de Silva de Alwis, a fellow of the European Law Research Centre at Harvard Law School who delivered the Felix Dias Memorial oration on the June 26 at the BMICH said: " FDB's vision of a de-formalised system of administration of justice was not only one where the process would be streamlined but one in which the props and the costumes of the court room drama would be simplified to create a more litigant friendly atmosphere and less hierarchical space."

The wigs, the collars, the gowns were gone. It was FDB's vision that the common man should be able to identify the courts and the individuals associated with them sans the pomp and the pageantry, and the anglicized imperialist propensity of the lawyers. The hot and the humid conditions of the tropics did not suit the black gowns, the collars and the other paraphernalia of the costume that adorns the judges and the lawyers.

When there is change in any field there is bound to be controversy.

Especially the legal fraternity resist changes. The profession has long uninterrupted conventions and heritage which is jealously guarded by the seniors. When a politician tries to change the existing rules, procedures and conventions a large majority in the profession oppose such changes, even though consciously they know the changes are inevitable, and it is for the better of the poor masses.

Justice Sansoni speaking at the convocation of the Bar Association spoke about the changes in the attire of judges and lawyers. "One is that the judges and lawyers have been stripped of their adornments and the distinctive dress they wore in court. I regret that this change was made. Neither a judge nor a lawyer would think that the dress he wore in court signified that he was superior in any respect from layman. Seniority questions of Attorneys-at-law, customs, conventions and usages of the past, and ceremonial sittings of the Supreme Court, they all form a part of the venerable traditions of the profession, and will not for that reason be mentioned anywhere, or at any time in books. They were in existence even before the time of our grandfathers, and have been handed down from generation to generation as portions of our precious heritage. They are well established, well known, and should be left alone."

Justice A.C. Alles had other views on the same subject. "When I took my place on the Bench almost ten years ago bewigged and clad in my scarlet robes of office in the full majesty of the law, I came here as a judge appointed by a foreign Queen. Today I leave the Bench in a different attire without those trappings of office as one of the judges of the common people of my country. I am indeed proud of the fact that I can make my final bow in that capacity."

Rangita de Silva de Alwis continues: "FDB felt that the Separation of Powers Theory which is the cornerstone of the Rule of Law should in the modern context give way to a less adversarial and more collaborative relationship between the Legislature, the Executive and the Judiciary. Such a relationship he felt would result in the acceleration of progressive politics rather that cause an impasse in government policy making"

With the introduction of the Administration of Justice law, FDB strove to achieve more collaborative relationship with the judiciary. At the second reading of the Administration of Justice law in the National State Assembly he stated with reference to the appointment of judges to the new Supreme Court: "We are all satisfied with the high standards of the judiciary in the country. It will be a tragedy indeed if anything were to happen which would affect their independence. Therefore by statute law a provision was to be made for the immediate and automatic absorption of all the judges now functioning into the new court, subject to age limits.

"The President could be advised -I am not saying he will be- "Do not appoint judge X ' or 'do not appoint judge Y when you are reconstituting your court. I do not think anybody would object to the preservation of the independence of the judiciary."

J.R. Jayewardene, the then leader of the opposition insisted that new AJL should secure the tenure of the judges, and FDB assured the leader of the opposition that every judge would be absorbed into the new Supreme Court. Later when the present constitution was enacted a large number of judges were sent home by the very same Jayewardene. It was unfortunate that FDB was not in parliament to remind JRJ of the undertaking FDB had given to him on the same matter.

With the introduction of the AJL a ceremonial sitting of the Supreme Court was to be held under auspices of the Ministry of Justice, which was a complete departure from the procedure adopted by the Supreme Court. FDB was of the view that as the Minister of Justice and new Administration of Justice law he had pre-eminent positions in the affairs relating to the administration of justice, the more collaborative relationship between the executive and the judiciary.

This new relationship would indeed accelerate the government policy making power. The Rule of Law should not incline in favour of individual rights but the rights of the entire community and duty of the community to protect the progressive measures of the government. The government had been elected by an overwhelming majority of the people, on a well-spelt out manifesto. The judiciary should not in any manner usurp the powers of the executive by interpreting legislation against the welfare of the government .

As he grew in stature FDB believed in a little bit of totalitarianism, forgetting that totalitarianism was total. The new visions of Felix Dias, to take effective control of the judiciary and virtually manage the judicial service as he was managing his Ministry were vehemently objected to by the lawyers irrespective of political colouring.

Surrounded by mediocre middling politicos without any vision or philosophy, FDB was a towering personality with an exceptionally brilliant mindset, and to the majority of them he was the power behind the throne.

With these surroundings the Little Hitler Psychosis hidden in the subconscious of every man began to grow out of proportion in FDB. With his learning he could justify any act which would be deemed to be interference with justice. He brought in the dreaded Criminal Justice Commission law and made statements by the accused against others admissible against them.

He believed in the theory that the Rule of Law has led to a false consciousness in that it hides the way law helps reinstate social injustices as stated by Dr. de Alwis. Like all politicians who entertain the ideas of ruling for ever, or others who feel that they have the divine right to rule for the betterment of the society, is not comfortable with the old theory of the rule of law which they believe effectively stunts the development processes initiated by them. These politicians eventually would confront someone, who is equal to them.

Thus a confrontation ensued first between FDB and the Chief Justice Victor Tennekoon. The reason was that FDB had taken over the ceremony of first sitting of the Supreme Court . Chief Justice Tennekoon wrote to FDB about the arrangements he had made for the ceremonial sitting of the Supreme Court. " The invitation that has been printed without any reference to me is one to be sent out by the Minister and requests the guest's presence at the inauguration of the Supreme Court. I would like to say that I have heard of the inauguration of 'schemes' where a Minister presses a button and some machinery starts working, of the opening of bridges and of public buildings by a Minister cutting a ribbon and lighting a lamp. But I have never heard nor can I understand what is meant by the inauguration of a person or a body of persons. One has heard of the inauguration of the American President, but that happens only by his being sworn in by the Chief Justice before the people. No one installs him in office. The Judges of the Supreme Court have already taken their oaths and installed in office and no further act is necessary to inaugurate them or the Court. If any inaugural sitting of the Court is contemplated that must be one that is left to the Court to decide and as to the date the place and the speakers.

"It is humiliating for the Court to be told and for the public to be informed that the Supreme Court is now to be inaugurated by the Minister of Justice. One begins to wonder whether there will be curtain which will be drawn by the Minister to expose the Judges to the public gaze or whether upon the pressing of a button we are expected to commence acting judicially like puppets in a Japanese toy shop.

"To participate in such a programme would result in loss of prestige, dignity and reputation for independence, which the Constituent Assembly by its Constitution, and the National State Assembly by its Law have been at pains to preserve and secure."

The chief Justice refused to participate in the ceremony that the Ministry has arranged and he said " I take this decision with great hesitation and pain of mind. I do so only in the interests of the institution of which I for the time being head."

Later the dispute was resolved amicably.

To FDB's assertion at the ceremony that the judges are his judges and courts are his courts, the Chief Justice in reply said "For we would like it to be known that we are not the Government's Court merely because the Administration of Justice Law under which this court came into existence was conceived and made into law by the present government or because all the judges of this court were appointed together by the present government.

A tremendous service done by FDB to the expansion of the legal system of this country was unfortunately overshadowed by his penchant for a little bit of totalitarianism.

Thus when the United Front Government lost he was deprived of his civic rights by a Special Presidential Commission, the law based on the notorious Criminal Justice Commission fathered by FDB himself. The fate took complete turn to deprive FDB of his civic rights .

At the end of his career to see FDB seated in the lounge of the Law Library like an ordinary mortal sans his arrogance and pomposity every one distancing like a leper was tragic.

The new government did away with Administration of Justice Law, instead of improving it with necessary amendments so that it would keep with the modern trends and help the hapless litigants, who finally became the victim of political polemics .

The late Premadasa will go down in history as the only leader after SWRD Bandaranaike and Dudley Senanayake, who did not interfere with the judiciary. He reintroduced the Mediation Boards which have helped many litigants. He promoted judges on seniority, and did not appoint any judge to a superior court from the private Bar.

Ajith Kumara, a JVP activist who had been accused of throwing a bomb in parliament which resulted in the death of Keerthi Abeywickrema was acquitted by Ameer Ismail, the High Court judge Colombo, just before he was to be promoted to the Court of Appeal. There were rumours afloat that the President would appoint someone else due to this judgment. Mr. Ismail was promoted and he serves the Republic as the judge of the Court of Appeal with distinction.

Justice G. P. S. De Silva was one of those judges who heard the election petition of Mr. Premadasa and decided to over-rule the preliminary objection taken by Mr. Premadasa's counsel K. N. Choksy P.C.

When Chief Justice Parinda Ransinghe retired there was speculation, whether Justice G.P.S. De Silva would be appointed as the Chief Justice due to the earlier decision over ruling the preliminary objection taken on behalf of the President. The Chief Justice was duly appointed by President Premadasa. During Mr. Premadasa's tenure of office, judges were given land at concessionary price to build houses. They were given motor vehicles for transport and the salaries of the judges were increased. He resolutely followed the resolution of the Bar Association in appointing Presidents Counsel.

When one of his Ministers accused the Bar Association of being a terrorist organization, he got the Minister to publicly apologize to the Bar Association.

It is sad to note that those who interfered with the judiciary were politicians with a legal background and well versed in the rule of law.

Judges are there to frustrate the will of any politician who entertains the idea that a little bit of totalitarianism is good for the country.

Jungle Telegraph

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