Highlights And Anecdotes About Our Bench, Bar And Legal System


by Dr. Wickrema Weerasooria

Attorney – at – Law

When I was asked by the editors of this journal for an article, I readily agreed. As an elder lawyer with over 50 years since enrolment, I have always assisted and encouraged the younger members of the profession. Contributing to one of their publications is such a worthy endeavour.

I informed the editors that rather than my write on a strictly legal topic, because of my age and experience, I prefer to contribute an article on some significant historical aspects of our Judiciary, our Legal Profession and also some landmarks about our Legal System.

Why Legal History is Important

A young lawyer who has just passed out can ask, ‘Why is the history of our profession important?’ The answer has been provided by very eminent persons. That famous American Judge, Justice Oliver Wendell Holmes said "The life of the law has not been logic. It has been experience…. The law embodies the story of a country’s development through many years and it cannot be dealt with as if it is contained in some text books. In order to know what it is, we must endeavour to know what it was. We must go to history".

Another well-known personality, Sir Walter Scott has said "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".

Texts that outline our Legal History

In the above context, I request 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 2013. He was one of my teachers at Peradeniya University. He wrote the monumental text, 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, Judge Christopher Weeramantry. Justice Weeramantry who ended his legal career as a Judge of the International Court of Justice (ICJ) at the Hague, spoke very highly of Sri Lanka’s judiciary and our legal profession. We need no other testimonial. Sadly, Justice Weeramantry also passed away in early February this year at the ripe old age of 90 years.

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. What lawyers call Hulftsdorp, our people call Aluthkade – New Bazaar, and that is still where the Temple of our Noble Profession is situated.

There appears to be a fair understanding of the development of our judicial and legal system in the post independence (1948) period. It is the period before that from 1796 to 1948 when Ceylon became British colony where awareness is scarce. The account that follows is taken mainly from the texts of Justice A R B Amerasinghe, already referred to above and other texts all of which are acknowledged in the select bibliography at the end of this article.

High esteem of our Supreme Court from its Establishment in 1801

In our Independence Day souvenir of 1948, it was said that there is no institution in the Island which by its long and honourable record of achievement which commanded greater respect than our Supreme Court. For over a century and half since the Court was first established in 1801, its Bench has dispensed justice without reference to colour, creed or caste.

An appointment to the Bench of Ceylon’s Supreme Court was considered the culminating glory for those in the Colonial Judicial Service. More so to be appointed as Chief Justice and occupy what was popularly called "the Middle Seat" of the Supreme Court Bench. In 1936 at the ceremonial sitting of the Court to welcome him, Sir Sydney Abrahams, one of the country’s most respected Chief Justices, said

"Certainly I can say without any modesty that it is the greatest day of my life – it is a dream come true. Every entrant to the Colonial Legal Service dreams that one day he may have the joy of occupying this seat, which it is now my privilege to occupy to administer justice in a beautiful island which has been truly called the pride of the Colonial Service and to be at the head of the judiciary which has been said by learned predecessors to be the finest system of justice in the whole British Empire"

The Supreme Court Judges were Englishmen of Excellent Education and Experience

The records show that the Supreme Court Judges were excellent men of the highest judicial traditions and all of them were highly educated (from Oxford or Cambridge), qualified and experienced.  The majority of the Judges were recruited directly from England and from other British Colonies. Others were Englishmen who had served as the Legal Officer of the British Crown in the Island such as Advocate Fiscal, Kings Advocate, Queen’s Advocate who came to be   later known by terms such as the Solicitor General   and   Attorney – General.   Those    who    held    the    office    of   District   Judges of  Kandy  and Colombo were also considered for appointment to the Supreme Court and when there was a temporary vacancy in the Supreme Court because of a Judge going abroad on leave etc, the District Judge of Colombo was appointed to act. In the early period, until about 1870s, only Englishmen were appointed to these high judicial posts. Then, slowly the doors were opened to the leading lawyers in the Burgher community. 

Among the Burgher lawyers who were so appointed to the Supreme Court were, H.L. Wendt, J.R. Grenier, G.S. Schneider. J.F. Garvin and Allan Drieberg. The first Sinhalese to be appointed to the Supreme Court Bench was Sir Harry Dias in 1878. The next Sinhalese to be a Supreme Court Judge was Walter Pereira and thereafter A. St. V. Jayawardene and then Thomas De Sampayo.

About Sir Harry Dias at the Supreme Court

There is an interesting anecdote on the appointment of Harry Dias to the Supreme Court Bench in July 1879. The story is told that Harry Dias was an accomplished horseman and he attracted the British Governor’s notice by the graceful way in which he rode his horse on Galle Face Green. "Who is the dark gentleman?" asked Governor Sir William Gregory pointing to Harry Dias. He was told that he was a distinguished Sinhalese Advocate called Dias. There was just at this time a vacancy on the Supreme Court Bench and Governor Gregory remarked: "If he can sit on his horse so well, he should be able to sit on the Bench as well". The next day Harry Dias was sent for to Queen’s House (the Governor’s Residence) and the appointment offered to him, which he accepted.

He was the first Sinhalese judge to be so appointed. Born in 1822, he was 54 when appointed. Harry Dias also holds the record of being the first Sinhalese barrister and the first Sinhalese to receive a knighthood. He continued as a Supreme Court judge for 16 years until 1892. What is significant is that the other Supreme Court judges on the Bench at that time (mostly of English origin) always consulted Justice Harry Dias when they had to decide any important issue on Customary law which was not already covered by earlier decisions. Also in the case reported in volume 26 New Law Reports 257 at page 258, Chief Justice Anton Bertram referred to Justice Harry Dias as "a judge of great local experience".

The Charter of Justice (1801) and the First Chief Justice

As stated above, the Supreme Court was established in 1801 with two judges, namely Chief Justice Edmund Carrington and Justice Henry Lushington. Carrington was an English lawyer practicing in India. In 1799 he was visiting Ceylon and the first British Governor, Frederick North (who was only 32 years old and the third son of the then English Prime Minister Lord North) had asked Carrington to prepare a Charter of Justice for the newly conquered Island. Carrington did this also recommending the setting up a Supreme Court. The Colonial Office in London was so impressed with his work that they asked Governor North to appoint Carrington as the first Chief Justice.

On Carrington’s retirement from the Bench in 1806, Alexander Johnstone was appointed first as a Judge and thereafter when Lushington also retired, Johnstone became Chief Justice in 1811 which position he held until 1819. Johnstone came from a famous English family connected to nobility and royalty. While functioning as Chief Justice, he compiled the customary laws of the island which compilation is held in high esteem. It was also during his time that the Jury system (the first in Asia) was introduced to Ceylon.

Sir Hardinge Giffard – Fourth Chief Justice

Johnstone was succeeded as Chief Justice in 1819 by Sir Ambrose Hardinge Giffard. Giffard’s brother was the famous Lord Halsbury, one of the greatest Lord Chancellors of England. Halsbury is so well known even to modern day lawyers as the compiler of Halsbury’s Laws of England which is still used as a reference in legal arguments and opinions.

To be Continued

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