Contd. from last week
Of the present-day genera-tion of lawyers and a few judges who joined
the profession after the introduction of the Administration of Justice
Law, some have done well in the profession though they have not mastered
the Oxford accent but have developed an accent of their own. They were
looked down upon as 'haramanis' at the Law College. Pronunciation of the
queen's language by 'haramanises' seemed to cause ripples of laughter to
those who slavishly imitate and ape the West. Still with all the odds against
them they would persist in pronouncing English the way which was natural
to them.
A Law student who bravely participated in the contest for the Hector
Jayawardene Memorial Prize for oratory in English, made a speech which
was grammatically perfect but pronounced in the way most natural to him.
When he made his speech he was virtually laughed down by the others. Courageously
he pursued his law studies and ended up as a Minister of the present Government,
whilst some of those who laughed at him are now working for the Government
in inferior positions.
One of the basic tools for interpreting the law is a good legal dictionary.
A comprehensive dictionary of the language is a sine-qua-non. The tragedy
of Sri Lankan society is that we produce hordes and hordes of graduates
who have followed their main subject in the Sinhala language. There are
specialists who have earned doctorates taking Sinhala as a subject. Still
I could think of only a few persons of the hundreds and thousands of graduates
in Sinhala who have made a significant contribution to the development
of the Sinhala language.
It was unbelievable that the biggest contribution towards the development
of the Sinhala language came from occidental scholars. William Geiger and
Carter are two names that come to my mind. It was Geiger who translated
the Mahawansa into English. The early dictionaries of the Sinhala language
were by these scholars and others who had travelled abroad and studied
the Sinhala language in English universities.
Dr. A.P. de Zoysa and Dr. G.P. Malalasekera were the Sri Lankans who
had made substantial contributions in trying to build a Sinhala dictionary.
What amazes me is that though universities are churning out factory loads
of graduates and post-graduates and scholars and doctors none of them had
ever thought of compiling a modern Sinhala dictionary.
Even S.W.R.D. Bandaranaike or the other leaders of successive Governments
never thought of compiling a Sinhala-Sinhala, Sinhala-English and English-Sinhala
dictionary with state funds. The most popular English-Sinhala dictionary
was compiled by Dr. Malalasekera. It was published in 1948 and was revised
in 1992.
This dictionary has a large number of unimportant and rarely used words
like 'Bain-Marie', 'Aleatory', 'Argy-Bargy', 'Beaujolais' etc and has omitted
words like Buddha, Christ and Mohammed.
In Carter's Sinhala-English dictionary, published in 1924 most modern
Sinhala words are not used at all, like 'hediya' for nurse. Therefore,
the most modern technical terms used in the teaching of any science or
art are not found anywhere.
To complement this awkward situation, the government through the Department
of Official Languages had published glossaries of law and invented thousands
of new words. Even a present day lawyer with a rudimentary knowledge of
English, would find it much easier to understand the meaning of the English
word by referring to an English dictionary than by trying to understand
the meaning of the Sinhala word given in the glossaries, as no dictionary
would contain these words.
The words are so artificial and alien to spoken Sinhala that they would
rarely stick in the mind. This is a pathetic situation. Large amounts of
tax-payers' money has been and are being used to make the two official
languages work smoothly in the administration of the government. No government
department or ministry has thought of compiling a modern Sinhala dictionary,
which would be the first preference to a Sinhala Encyclopedia, for which
a separate branch under a ministry had been set up.
This demonstrates the apathy, the lethargy and unpracticality and sheer
stupidity of the Sinhala people. The Tamils on the other hand love their
language so much that they are able to teach any subject without much difficulty
as text books and books of research are printed here and in India for a
larger market.
Be that as it may, most of those who use the Sinhala language in courts
and tried to use words found in the legal glossaries, were paradoxically
educated in the English stream from the main educational institutions in
the country.
Parinda Ranasinghe, former Chief Justice – a Royalist, used the Sinhala
language wherever necessary, in a way that enhanced its poetic beauty.
When he took oaths as the Chief Justice of this country, he broke tradition
and addressed the ceremonial sitting in Sinhala and quoted from the Dhammapada.
Asoka Wijetunga was another judge of the Supreme Court, who as a magistrate
spoke in Sinhala on ceremonial occasions. He too went to Royal College.
The late Keerthi Srilal Wijewardene, Chief Magistrate, Colombo and Mr.
Wickramasekera as magistrates used Sinhala effectively and their judgements
had an abundance of the correct technical terminology as found in the Sinhala
legal glossary – they were both Thomians.
Ninian Jayasuriya, was a master of the English and Sinhala languages.
A Mudliyar, when Mr. Jayasuriya was officiating in the High Court told
me this interesting story.
Once two lawyers, one a President's Counsel and the other a leading
criminal lawyer, appeared before Mr. Jayasuriya for the first time to defend
two accused in a bribery case. As Mr. Jayasuriya got on to the Bench he
questioned the two lawyers whether they had anything to say about the indictment
that had been framed. Both of them later confessed to the Mudliyar that
they never had the occasion to study the indictment but were trying their
best to master the facts. Mr. Jayasuriya then turned to the State Counsel
and asked a few questions in Sinhala. The poor State Counsel could only
cringe and smile. He exhibited his ignorance like the other two counsel
much senior to him.
Then Mr. Jayasuriya started dictating a lengthy order in Sinhala using
every word in the legal glossary. After the order he said something in
Sinhala and closed the file. The Mudliyar, the three counsel and the accused
were nonplussed and stood still.
Then Mr. Jayasuriya said in English that the accused were discharged.
Both accused were government servants who had studied in the Sinhala medium.
Before the Mudliyar could translate the word "discharge" both accused having
understood the word 'discharge' which emanated from Mr. Jayasuriya's mouth
ran out of the dock with a smile. Mr. Jayasuriya in his inimitable style
had made an indepth study of the pure Sinhala equivalents to the English
words. And he was able to deliver the judgement without even referring
to a glossary. Justice Jayasuriuya was a Josephian.
But I am yet to come across any judgement reported or unreported which
ventures to interpret the law according to the Sinhala Act. As I have stated
earlier in this column the much applauded Bail Act has caused severe problems
and in some courts it has been interpreted to result in the reverse.
The jail authorities are complaining of a severe over-crowding of the
prison cells. This does not mean the police have suddenly become clever
and detected a large number of unsolved crimes during the time of the dooshanaya
and beeshanaya. Now no beeshanaya and dooshanaya in the UNP style and the
present day dooshanaya and beeshanaya has taken a completely different
turn and is called "Padooshanaya & Pabeeshanaya".
The crime rate has soared according to Justice Minister G.L. Pieirs.
Rape and incest have increased in geometric progression. The main cause
is that criminals are protected by the Padooshanaya and Pabeehsanaya crowd.
On the other hand very few magistrates had delegated their power to the
police to remand suspects, on bailable offences after the maximum period
of remand permitted under the old and well tested Criminal Procedure Act.
Others remand on the basis that they have no power to grant bail.
A classic case is where a magistrate grants bail to a suspect alleged
to be 'a Sea Tiger' by the Crimes Detective Bureau on the basis that he
has been kept in remand for three months under the Emergency Regulations
which permits the Magistrate to grant bail unless the Attorney-General
direct otherwise, but refuses bail to a suspect who has allegedly possessed
a locally manufactured revolver even after 28 days in remand. His excuse
was neither the Firearms Ordinance or the Bail Act permits the Magistrate
to release the suspect on bail.
One of the most important judgements in my opinion is a judgement by
Gamini Abeyratne, High Court Judge of Negombo. To my mind this is the first
time certain clauses of the Sinhala Act were interpreted fully. He compared
and contrasted the Bail Act and clearly postulated the arguments which
decided that certain clauses in the Sinhala Act differ substantially from
the English Act, and the Sinhala Act prevails over the English Act.
Section 28 of the Bail Act states "in the event of any inconsistency
between the Sinhala and Tamil text of this Act, the Sinhala text shall
prevail".
One of the clauses Mr. Abeyratne did not consider is Section 5 of the
Bail Act which states "subject to the provisions of Section 13, a person
suspected or accused of having been concerned in committing or having committed
a non-bailable offence may at any time be released on bail". But in the
Sinhala Act which is the Act in force in Section 5, out of the words "released
on bail" the words "on bail" are absent, which would mean that if a person
is not suspected or accused of having committed murder or an offence punishable
by death, Courts could in effect release such person without bail.
As I have said earlier, such hasty legislations presented to Parliament,
even by a jurist with a distinguished academic record like Professor Pieris,
makes the law look an ass. Confusion worse confounded is the only apt way
to describe the predicament that has fallen upon the judges, the lawyers
and the suspects who are brought before a court to be released under the
Bail Act. (More next week on the Sinhala judgement.)
The Jungle Telegraph
Editorial/Opinion Contents |
