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"This, That and the Other"

About the Legal Profession and the Judiciary



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By Dr. Wickrema Weerasooria


(This is an edited version of a talk given in October 2013 at the Cinnamon grand Hotel where Lawyers of 50 years standing were felicitated by the Bar Association)


Hon. The Chief Justice, and Other Judges, the Attorney General and Mr. Upul Jayasuriya, President of the Bar Association of Sri Lanka, Ladies & Gentlemen.


When I was asked to speak a few words on behalf of the lawyers being felicitated today, I felt both humbled and privileged. I felt humbled because there are others in this group who are far more competent, knowledgeable and able than I to give this talk. I felt privileged because of the opportunity given to me to address such a large and distinguished gathering.


 


History’s Importance to Lawyers


It was the well-known English writer Sir Walter Scott who said that a lawyer without history or literature is a mere mechanic, a mere working mason. With some knowledge of history, he can call himself an architect. In that context, as a lawyer of over 50 years, I ask the younger generation to spend a little time learning about our legal and judicial history. Most of that history is found in three excellent books all authored by one man, the late Justice A R B Amerasinghe. He died recently in January this year (2013). He was one of my teachers at Peradeniya University. He wrote the History of the Supreme Court. The second book was Legal Heritage of Sri Lanka and the third book Professional Ethics for Lawyers. Justice Amerasinghe has truly said that Sri Lanka’s greatest lawyer was Mr. H.V. Perera Q.C. and the greatest jurist is Judge Christopher Weeramantry.


Justice Weeramantry who ended his legal career as the Judge of the International Court of Justice (ICJ) at the Hague, speaks very highly of Sri Lanka’s judiciary and our legal profession. We need no other testimonial. The apex functioning of both judges and lawyers in Sri Lanka is still at Hulftsdorp – named after the Dutch General Hulft who died in 1656 of a bullet fired by a Portuguese soldier. The area where Hulft died became known as the village of Hulft (Dorp meaning village in Dutch) What lawyers call Hulftsdorp, our people call Aluthkade – New Bazaar, and that is still where the Temple of our Noble Profession is situated. Today Hulftsdorp houses one of the most iconic buildings of modern times, the Supreme Courts complex and has become the hub of our country’s legal fraternity.


 


Origin of the Term ‘Jubilee’


Those felicitated today can truly be called Jubilants of Jubilinarians. The term originates from the word Jubilee – which means a time for rejoicing. According to the Old Testament, once every 50 years, the slaves were set free and from that tradition sprang events such as Golden Jubilee which is associated more with marriage, meaning 50 Years of married life. Law is also a type of marriage – although the woman depicted as law is a mistress – not a wife. She is a very jealous and stern mistress at that. The dictionary defines a mistress as a "woman in the position of authority, ownership, and control over the person". I think that is true of the law. I leave it to those who have or had mistresses to make their own assessments!


The men and women felicitated today are jubilants who took oaths as lawyers 50 years ago. In my case, age and age alone is the criteria for selection – not eminence, skill or fame.


 


Jubilants and Obituaries


In the well –known Bar Association Law Journal which has been ably edited for the past over 20 years by eminent lawyer Mr Kandiah Neelakandan and a talented group of other lawyers – photographs are carried of the new Court of Appeal and Supreme Court Judges and new President’s Counsel and also of jubilants (who have reached 50 years at the Bar). Interestingly, the next page in the same Law Journal is the obituary page of lawyers who have died. In other words, the jubilants’ page is followed by the obituary page. As a process of legal reasoning this is understandable. According to the Supreme Court Rules for Admission and Enrolment of lawyers, one must be over 21-years to apply for admission. Normally after Law College, we are about 24 or 25 when we apply. Hence after 50 Years at the Bar which is the time span to qualify as jubilants, we also qualify for the obituary page as those over 75 years. Today, life expectancy in Sri Lanka is 80 for men and 85 for women.


Moving away from jubilants and obituaries, I turn to some observations about our profession. The legal profession is always referred to as the "noble profession". History records that there were three learned professions – law, theology and medicine. That is the order given in the textbooks - first law, second theology and third medicine. The word "profession" comes from the Latin word "professio" which means taking of vows when entering a religious order. Ours is not a religious order although courts are often referred to as the Temples of Justice. Ours is also not the oldest profession which originated first exclusively with the female sex but with homosexuality which is now legal in most developed countries (not Sri Lanka,) the oldest profession is not restricted to women.


 


Legal Profession and the Oldest Profession


For some reason our Judges have been sympathetic to the ladies of the oldest profession. One Judge (Justice Schneider) in acquitting the accused woman said "in this Island we have no immoral women walking the streets accosting men". Another judge (Justice Swan), acquitting a single woman found in a brothel, said "one swallow does not make a summer". Both these verdicts show that these Judges had a just understanding of women’s plight. Brothels have now disappeared and some replaced by massage parlours. Women who work in them are village girls driven by poverty and not by sex. In that context, the judiciary should have a "Schneider and Swan" attitude and should punish only those who exploit these women and not the women themselves.


 


Amalgamation of the Legal Profession


As we all know, in 1974 our "noble profession" which existed on British lines as "Advocates" and "Proctors" was amalgamated and fused into one category called "Attorneys-at-Law’’ and the "restructured profession" is now coordinated by the Bar Association of Sri Lanka. I believe it was Mr. Felix Dias Bandaranaike (as Minister of Justice) who made these changes. The word Attorney is the American term for a lawyer (unknown in England). In the public mind there is some confusion between Attorneys who hold a Power of Attorney and Attorneys-at-Law who are lawyers. I find this confusion in the minds of students when I lecture non-law students.


 


President’s Counsel and "cunning"


Apart from passing the examinations of the Sri Lanka Law College, to be enrolled as a lawyer one must be "of good repute" and have "competent knowledge and ability". He or she must have apprenticed in a lawyer’s chambers and also produce testimonials from at least two lawyers of not less than seven years standing stating that the applicant is of "good repute" and there is no objection or impediment to his enrolment. And although we call ourselves a profession, the oath we have to take before the Supreme Court on admission refers to "the office" of an Attorney-at-Law and not to a profession. Interestingly, President’s Counsel must be "learned in the law" and the oath they take obliges them to exercise "cunning" and "to act without delay trackting and tarrying". These two terms "trackting" and "tarrying" are not common terms. They are "old English" terms. When preceded by the term to act without delay", they mean that President’s Counsel should plead their cases expeditiously.


About "tarrying" I clearly recall the term in the Shakespearean play Merchant of Venice. The Judge (Portia) tells Shylock (the creditor) who is eager to cut out the pound of flesh nearest the debtor’s (Antonio’s) heart – "tarry a little" – meaning do not be in a hurry. The judge then drops the bombshell. Yes, you may cut out the pound of flesh but you cannot spill a drop of blood – because there is no reference to any "jot of blood" in the surety bond. Shylock is perplexed. He soon loses the case and Antonio goes free. Justice is both done and also seen to be done! I will never forget the Judge’s admonition to Shylock – "tarry a little"


 


Significance of the "Bench"


When talking of lawyers and judges, the word `Bench’ has always intrigued me. As lawyers, we commonly refer to the "court" or the judges as the "Bench". Technically, a bench is a piece of wooden furniture on which the judge sits. However, over centuries, this furniture and its arrangement in the courtroom has given rise to much judicial heritage and customary practices.


The Bench and the Bar are also separated by space and different type of furniture. The Bench is always elevated and architecturally more imposing and majestic to bring some awe to its robed occupants - even in the case of a District Judge or Magistrate. When a judge is on the "Bench" it means the court is sitting or in session – as opposed to a judge being in his chambers (office). Court etiquette applies to a judge who is on the "Bench" and an individual’s first appointment as a judge is commonly referred to as being "elevated to the Bench". All judges have been lawyers and thus both categories know that much of the "judicial trappings" is ceremonial. It was worse before where Superior Court judges had to be fully adorned. The dress is less awesome and less ceremonial today. All this judicial glitter is to impress the public. The policeman’s shout of "Silence in the Court" starts it all.


A question from a judge in court is commonly called a question "from the Bench". In early times in criminal matters, even a "Bench Warrant" could be issued by a judge in open court. Many terms have also sprung up from the use of the term "Bench" such as "Full Bench", "Divisional Bench" etc.


As a banking lawyer, I found that the origin of the word "bank" came from "Banco" which in Latin means "Bench". In ancient Venice, moneylenders sat on benches in the market place and when they ran out of money to lend the people broke (ruptus) his bench: thus the origin of the word "bankruptcy" (banco-ruptus). While my Australian students who did not know Latin could not appreciate the term "banco", my Sri Lankan students did. In Portuguese we knew the term "bankuwa" for bench!


 


Judicial and Legal Attire


Now turning to another issue, while women know what and how to dress, the gazetted Supreme Court Rules on Attire for men talk of a black coat and dark trousers and black tie but they also permit white trousers or white National dress and also a black sherwani. Though permitted, sherwanis and white trousers are uncommon. Before the Superior Courts, the Court of Appeal and Supreme Court a black gown is required. In my recent text on Buddhist Ecclesiastical Law I discussed at length the case of Sumana Thero who was ultimately permitted by a Supreme Court Bench of five Judges to apply for enrolment as a lawyer but ultimately he failed to be enrolled because he refused to the wear a black gown over his yellow robe. The Chief Justice Samarakoon said "without the gown we cannot see you". Thus he was not admitted.


Lawyers are also fortunate that like doctors we do not have to live by the Hippocratic Oath (derived from a Greek doctor called Hippocrates – father of modern medicine). Regrettably, there are some doctors who confuse Hippocrates with hypocrites (also a Greek word) which means a pretender or false person. Compare a lawyer’s consultation with a client in his chambers with a doctor’s consultation with a patient at a private hospital. Lawyers take time listening to the facts of the case. Doctors do not take even ten minutes per patient to write out a prescription!


 


Legal Finesse


In my work as a teacher I always lighten my lectures on law to non-law students by relating interesting cases and anecdotes. I ask my students to name two things that the law requires of them but which they themselves cannot or are unable to comply with. I tell them that is their birth and death. (upadinakotai, marenakotai) Their birth must be registered within 42 days and their death before they can be buried or cremated. Both requirements are effected by others on their behalf! I also explain how the law is full of Latin terms and how some of our judges have (innocently) used them incorrectly. For example, "per annum" means "per year" – normally interest to be paid every year. The judge had mistakenly written in the judgment "per anum" which means "through the anus.’’ "Laesio enormis" is another term. It means "huge loss". A judge had mistakenly written in a criminal case that the female victim had been "raped laesio enormis - with huge injuries".


Lawyers are also trained to look at things differently. A few weeks ago there was an International Conference on Insurance. The main topic was "Low Penetration of Insurance". In other words the need for taking out insurance is not sufficiently understood by our people. I argued that the term penetration should not be used for this topic. Instead to use the term "low spread of insurance". Penetration is a well-known legal term commonly used in rape cases. The prosecution has to prove "penetration"; if not the accused will be acquitted. So why use a term that is so well established in the criminal law of rape, to discuss how much our people know of insurance! The two topics are poles apart!


 


Two Important Judicial Decisions on Legal Practice


The following are two interesting cases relating to practice of law decided some years ago, relating to claims by two very well–known lawyers for income tax relief. In Chelvanayagam v Commissioner of Income Tax 49 NLR 439, the tax payer (Mr. S.J.V. Chelvanayagam) asked that he be permitted to deduct the cost of law reports from his assessable income. The Court rejected the claim.


In Rajapakse v Commissioner of Income Tax 36 NLR 258, Mr. Lalitha Rajapakse (later Minister of Justice and Knighted as Sir Lalitha) argued that expenses incurred in traveling from his local chambers at his home in Colombo to the law courts in Hulftsdorp was deductible. The Supreme Court rejected this claim saying that the Courts were not a "place of business" and thus the traveling from a lawyer’s home to the law courts was not a deductible expense. Future generations of lawyers were precedent bound by these two important decisions and argued no more about these issues.


 


Defamation and Actions by Lawyers


When teaching delict or tort law I was interested in finding out whether there were any reported Sri Lankan case law where lawyers themselves have filed action for defamation. While there are no Sri Lankan cases, in South Africa where the same Roman Dutch Law of delict (the action injuiriarum) applies, the following case law is available. The courts have held that it is defamatory to say of a lawyer that "he is the last person to talk of honesty and that he bolsters up fraudulent claims and is guilty of fraud and corruption." It would be equally defamatory to say of a lawyer that "he swears false affidavits", or that "he is a liar," that "he charges extortionate fees" and / or is guilty touting for clients by himself or with his spouse, or that he is "In the habit of disclosing his client’s secrets to the opposing side." On the other hand, an action for defamation by a lawyer for being called "a miserable cad" was unsuccessful because there was no proof that that statement was attributable to his practice as an attorney.


Also, while it would be defamatory to allege of a qualified doctor that he is "a quack", the courts have been hesitant to permit a damages claim by a lawyer when the allegation was that "he was ignorant of the law" – when no specific area of ignorance had been referred to.


 


Jokes about Lawyers


Jokes on doctors are mostly sexually oriented and concern female patients or the female anatomy. Jokes about lawyers are more morbid. Regrettably, they show a public distaste for lawyers. In Shakespeare’s play Henry VI there is a leading dialogue between two of the main characters, Cade and Dick. Cade asks what should be done to create a perfect society and Dick replies, "The first thing to do is kill all the lawyers." Is this a popular perception?


When I was at the Monash University Law School some often quoted jokes were the following. A priest, a doctor and a lawyer fell off a boat in a shark infested sea. Very soon the priest and the doctor were killed and eaten by the hungry sharks. The lawyer survived and when rescued he was asked how he managed to escape. He had said, "The sharks had recognized that I was a lawyer and had showed me professional courtesy!" The other joke is how scientists had to choose between rats and lawyers to conduct a painful laboratory test where the victim is put to a slow death. They chose the lawyer saying that as scientists they were very emotional when they caused hurt, to the rats but not so with the lawyers! The last joke is where a motorist had in two separate incidents run down and killed a skunk and a lawyer. In the case of a skunk there were several brake marks showing attempts to avoid hitting the animal but there were no brake marks before hitting the lawyer!


Voetlights Dinner


Every year in Sri Lanka (from about 1896 they say) an annual dinner called the "Voetlights" is held by the Bar meaning the legal Bar. On that day Bacchus (the Lord of Wine) and not the law giver Justinian that reigns. The Voetlights motto is with "Malice to All and Charity to None". The lawyers get an opportunity to laugh at and defame the judges with impunity and without any fear of contempt etc. The Voetlights may now be celebrated in two countries of the world where Roman Dutch Law applies – South Africa and Sri Lanka.


 


Why Voet and not any other Jurist?


What I cannot understand is why Voetlights? We had many Dutch Jurists - Voet, Grotius, Van Leeuwen, Van der Kessel and Van der Linden. So why Voet – better remembered as "Foot" by some of our younger lawyers! Ceylon’s English Judges some of whom had no fondness for Roman Dutch Law had expressed the view that in case of a conflict, the views of Voet is to be preferred thus, it is in his name that the judges and even senior lawyers are mimicked and abused every year with impunity and in fun.


 


Law and Technology


No lawyer can look at a crystal ball and predict the important focus of future legal practice. But in my view one thing is certain. Technology will change everything. It is like the waves of the sea. No one can stop the development of technology. Every profession including the legal profession will be affected. There are no more global boundaries despite distances and the sea. The change is also very rapid. By the time we wake up tomorrow, the world would have changed and the same pattern will continue. So apart from some knowledge of the law, lawyers must keep abreast of the computer and ICT. I am amazed at how my grandchildren operate mobiles and the machines!


 


Ingredients of a Good Lawyer


As a final conclusion let me recount what my father told me 50 Years ago when I took oaths as a lawyer in April 1963. My father (the late Mr. N.E. Weerasooria Q.C.) held a small party to celebrate the occasion. Two of his sons had now joined him in the profession – my elder brother, Norman (who regrettably died in 1994) and myself. At that function my father offered the following advice to the young lawyers entering the profession. He said:-


"The young lawyer may wish to know what is the dearest thing in the legal profession and what is it that counts for success.’’ To the former he said, ``there is but one answer. The regard of the other members of the profession is its most precious jewel. It is far sweeter than the fees of lay clients, the lure of judicial office and the praise of judges. And, as for success, the young lawyer on the threshold of his career should take with him a capacity for hard work, integrity and the spirit of independence. For without the first, (capacity for hard work) you cannot achieve it, without the second (integrity) you cannot keep it, and without the third, it is not worth having. With these three attributes, the young lawyer will not walk in solitude up the hard ascent".


There is one more important characteristic; "honesty to court". This is a requirement that my late father used to emphasize to me. "At no time as a lawyer,’’he said, "must you ever compromise your duty to court in order to win your case". ``A lawyer’s duty to court is paramount. Without it courts cannot function". So a lawyer’s honesty and his duty to court is a MUST. The best judge of a lawyer who is honest and dependable is not only the judge but his brother lawyers. Judges come and go but the profession remains, individually and as a body, and the assessment of a lawyer by the profession is what matter most.


 


 
 
 
 
 
 
 
 
 
 
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