Faith in the Law
There was a time I believed in the law – the means by which issues are settled without fisticuffs. I used to teach in my human rights class for engineers that rights are like our muscles – the more we use them the stronger they become. I no longer think so. After several years in litigation, I do not believe in the efficacy of the law. Cases are more often not won on the law but on many other things. This article is about those other things, many from my personal experience.
The easiest way people find to undermine a case is bribing the fiscal who will “find” that the person to be served notice on is “not at home.” There was a year’s delay in court, as a landlord tried to vacate a doctor staying in his Bambalapitiya home since 2012 on lease without paying a cent. A government high-up well above the fiscal loaded the fiscal in his office car at 6 am and asked the fiscal to serve the papers. That is how the case got started in 2016 but there are now delays from the judge who asks for time to rule on technical objections and postpones for more time. The points of law have not been argued yet. Said a friend to the landlord, instead of going to court, he would have got some rowdies to force themselves into the house and have a party in the hall and vomit, and the doctor would have vanished. That is how the law is understood in Sri Lanka.
Cases cost money. When I was on the Election Commission, sometimes before elections I would get several 2-inches thick court papers. It is unreasonable to ask us to read them, especially when many pages are in a language we do not understand. I do not read them unless there is something of particular interest. Courts proceed with the case. Usually, the AG responded for the Commission claiming to represent us all, although I had often not given my proxy. Today 5 months after I left the Commission, I got a thick packet for CA369/2020 in Jaffna. The poor petitioner paid mailing and copying charges. The case is presumably going on as if I got the papers and submissions are made in my name. No one cares.
Even when not guilty we plead guilty. For otherwise, instead of the Rs. 1000 fine, we end up spending days going to court. The court policeman often takes it upon himself to show his authority over those whose station in life he resents. In a traffic case when I pleaded not guilty and stood in the dock, the policeman grabbed me by the arm and pushed me to where he expected me to stand. While waiting, if we crossed our ankles we are shouted at. We are not allowed telephones while many lawyers are chatting on their phones. Although I won that case, at the next improper traffic ticket, I sent an officer in Anuradhapura to pay the fine and retrieve my licence.
The Human Rights Commission – the Landline
I gave shelter to the Abbas family when they, Afghans fleeing home because of their Shia faith, came to me as our in Jaffna because they were attacked near Negombo by anti-Muslim thugs. Tamils, who should have been sympathetic, did not want them in Jaffna. Governor Suren Raghavan and police HQI Fernando wanted them moved out of my home into their concentration camp in Vavuniya.
I filed action in the Human Rights Commission. Over two years later, today (23.04.2021), the Governor and HQI did not show up for the hearing for the third time. Now they do not even send excuses. The Human Rights Commission is a joke. According to parliamentarian Mujibur Rahman, an 80-year-old former-Minister Jagath Balasuriya was named the Chairman of the HRCSL; his wife “Kumari served as the Governor of the Southern Province during Mahinda Rajapaksa’s presidency and their son, Tharaka is the current State Minister for Regional Cooperation… at the expense of the integrity of the commissions.”
No wonder that no action is taken when the accused who can only be government officials and institutions, arrogantly fail to turn up because they seem to have the HRCL in their pockets. Their rulings are only recommendations and not orders – my wife is still waiting for the Rs. 50,000 ordered against University of Peradeniya 15 years ago.
The only good of the Commission is that once we file, the one-month clock on challenges at the Supreme Court stops. How do we respect this Commission that even has an expired email address on its letterhead so that we cannot easily communicate?
People say the HRCL is so useless it is like our landline telephone – to be used only to find our handphone, like keeping the narrow one-month window to the Supreme Court open.
I have successfully defended myself in traffic court. But the judge would not allow me to speak for myself in the Commercial High Court and asked me to come with a lawyer. Perhaps it was for the best but I still feel I could have done well for myself at no cost.
Lawyers pretend to be gentlemen. So they do not advertise. I know of charges per appearance from Rs. 2000 in Kayts, to Rs. 7000 in Jaffna, to Rs. 20,000 in Colombo, to a total payment of over Rs. 1 million, win or lose. A short brief on technical objections cost a client Rs. 120,000. Lawyers who quote a total fee, then ask for filing fees, copying fees etc. which too are huge.
A person who can afford to pay against a less endowed client can keep going till the opposition gives up without further money. Even in cases where the law is clear, I have found opponents citing technical objections without letting the case go to arguments on points of law. The good client who has the law on his side, gives up as his purse goes empty arguing over technical points like jurisdiction of court, and gives up before the substance is argued. If he still does not give up, a KO comes when even a justifiable negative decision is appealed to the Supreme Court to suck the client dry. The lawyer gets paid a lot more and our justice system gets to sleep on all this.
While the above problems may be put on the system, there are totally unscrupulous lawyers. Mr. Elmore Perera once told me of a case where he was sent a notice saying the date had been moved. But when the hearing happened on the appointed date and he was not there, an ex parte ruling dismissed his side.
Once was the time when lawyers did not communicate with the press to take arguments out of court. Today even the AG has his media team. In these circumstances an immature lawyer went to the Daily Mirror and gave an inaccurate statement. Being inexperienced at this, his statement was garbled. As reported, this very high-priced lawyer blamed his own client by name.
There is another lawyer from Chavakacheri practising from Colombo. He transferred the Colombo house of a person without the latter’s knowledge or signature. When the owner learnt of it after some years and went to a lawyer, the lawyer advised the owner, “I know you did not agree to transfer the house. But now that the claim has been made that you did, a judge has to inquire into the claim.” It took nearly 20 years for the actual owner to get the house back. But this crook had given wrongful ownership to another for 20 years. He is therefore thought of as a clever lawyer although in reality he is a crook.
The same Chavakacheri man lacking ethics of any sort, was involved in a Trincomalee college case where the President was a Petitioner against this Chavakacheri man’s clients. A stay order against his clients was lifted. He wrote to the President of the stay order being lifted demanding of the President that he not interfere with the college. There was no order against the President by the judge and the lawyer seemed to be trying to trick the President into thinking there was to make him give up his duties as President by leveraging on the common fear that going against a judge would lead to penalties.
The Role of English
Contempt laws are improperly defined, and judges have huge latitude as Ranjan Ramanayake found out. But because we fear unreasonable judges we err on the side of caution.
Today lack of English proficiency is a huge problem. Like a bittersweet remnant of colonialism, we dare not admit that we lack proficiency for social reasons. So we carry on pretending we are good at English. Universities and Courts have this problem where those who know no English try to run a system on broken English.
I have written a book on English usage to be published soon by Kumaran Books (“Alarm Bells on Sri Lankan English: A Cookbook and Reference for Teachers and Writers, and a Text for Tamil Students,” Colombo 2021). My book refers to two things of relevance here. One, I write of what the late Muriel Hutchins, CMS, BA Oxon First Class, taught my mother at Chundikuli Girls’ College. A girl, supposed to thank a school guest in the after-dinner speech, had at practice said “I wish to thank you for gracing the occasion.” Ms. Hutchins asked her, “Why do you wish to thank her? If you wish to thank her, thank her!” To thank her, the girl should have simply said “I thank you for gracing the occasion.”
In a particular case, a learned judge of the Commercial High Court ruled
“There is a matter to be looked into as such it’s my view, I should issue interim orders of prayer ‘l’, ‘m’ and ‘n’.”
If we assume that the judge wrote his intentions in correct English as we always must, he simply says he should issue orders like the girl who wished to thank the guest without actually thanking the guest. He is expressing what he thinks (his view) he should do but stops short of doing so. Grammatically also he refers to prayer in the singular and then lists three prayers. Which did he mean? One of them or all three? We must assume he said what he meant – that he thought he had to issue the orders and is yet to do so.
The problem for the clients is that given the power and prestige of English, their lawyers were afraid to ask the judge what he really meant, and assumed that he did issue all three interim orders, rather than saying he should issue them but is yet to do so! Although these particular lawyers are of a high order, this inherent fear of questioning a judge (even for clarification) undermines the fulfillment of the justice system and the due process for those whom it should protect.
Woman with an Attached Toilet
The second issue raised in my book is the advertisement that read: “Wanted. A flat for a woman with an attached toilet.” A huge weight indeed to carry around attached to her buttocks! What was meant in the advertisement is “Wanted. For a woman a flat with an attached toilet.”
Unfortunately, the lawyer from Chavakachcheri had not read my book as it is yet to be released. He wrote to the opposing side instead of correctly communicating through opposing attorneys, “I attach herewith the specific order granted against you which was obtained by suppression of facts and misleading court.” What did he really mean to say?
This lawyer was admitting to obtaining an order suppressing facts and misleading court? My Christian side says afford the man the benefit of the doubt that this was a grammar mistake, not an admission of his tricking court. But my Christian side also says people may change and admit to their wrongdoings. In reality, considering his mail a legal document, we cannot assume beyond what is written and so must take it at face value. On that basis, this seems to be a lawyer who is a liability to his uneducated clients charging high fees from them while pretending to be able to practise law in English!
I bet that no one will do anything about this uneducated Chavakacheri man because there is a fraternity of lawyers looking after each other. A litigant was recently persuaded by his own lawyers on the eve of an imminent sentence against a retired Supreme Court judge to drop the case.
In a case where a lawyer-politician threatened to assault me for finding fault with his party for always cheating, I felt the legal fraternity moving against me. The judge against convention allowed him to be robed in the dock. The police withheld the evidence for a year and an acting judge ruled it inadmissible – whereas Acting Magistrates usually fix another date. Another Acting magistrate was rude to me. I am not supposed to talk when my lawyer is present he shouted. When the court was on strike, I was not informed till I had driven half-way from Colombo, and that too only when I called on another matter. A lawyer is not supposed to talk when his senior is there –do they come to court to parade in front of us? One day my lawyer was there and when I was called up she went missing. When I spoke for myself the judge said my lawyer was present and I cannot speak. That lawyer was someone I had never seen before. The AG has taken the file to Colombo and been sitting on it for well over a year, ensuring there is no hearing. Out of the Commission, I need to back off or continue at my own expense and time.
God and the Devil
As I fight for justice, I find the scum from the legal profession arrayed against me – ones alleged to be baby sellers, people smugglers to Australia, forgers of deeds, one reportedly in a website divorcing his wife and racing to marry before his son whose wedding date was set. They are recommended as clever lawyers who can win any underhanded case and they get all the crooked clients there are.
As the forces of God and the Devil battle it out in court, I cannot understand contempt of court when it is only contempt I feel for the Chief Justice who was caught by police late at night wearing only a shirt in his car with a young woman lawyer near Parliament (The Sunday Leader of the time). Considering no action was taken, it appears as though no judge was prepared to take on a case against the Chief Justice for indecent exposure and violating public modesty. I am horrified at the legal system we are supposed to respect every time I read what I wrote before:
In the Helping Hambanthota case, according to ColomboPage (18.10.2014) CJ Sarath N. Silva “confessed…that he had delivered a judgment favorable to then PM Mahinda Rajapaksa,” who was accused of misappropriating tsunami funds. Says Kishali Pinto-Jayawardena the judgement “symbolized the pattern of law and justice being subordinated to political preferences.” Justices Shiranee Tilakawardane and N.E. Dissanayake had signed “I agree” on the judgement. When justices boast of their favoritism to politicians, why call us out for contempt? As Pinto-Jayawardena records, it was an amusing spectacle to see the Attorney General resisting interim relief being granted by the Court to President Rajapaksa prior to the elections but deciding “not to continue” with the case after Rajapaksa’s election as Executive President.
Around the year 2005 when I was working closely with Elmore Perera I heard credible reports of one Supreme Court Justice exposing himself in the toilet to the Supreme Court cleaning lady, and another who came with an empty toilet roll regularly to exchange it for a newly placed roll so that there would be no accounting problem when a roll is simply removed leaving behind no empty cardboard roll.
Today the situation is far worse and beyond toilet rolls and sexual-harassment by Supreme Court Justices.
On the other hand, I thank God for my lawyer Elmore Perera who let me decide what to pay him, and Prabhath de Silva who does not charge me a cent when cases are for a public or Christian cause. It is said he staunchly adheres to his values – once even standing up to a morally-reprehensible Chief Justice – regardless of the consequences. I thank God for the good judgements I have received from our better days and for those good lawyers and judges who are still there to help us out when the judicial darkness that engulfs us lifts as it surely must. Soon, I pray.