Features

Some giants of the Ceylon Bar I encountered on my return

Published

3 years ago

2023/02/26

Excerpted from the Memoirs of a Cabinet Secretary by BP Peiris

After a couple of days at home, father took me to his classmate and best man at his wedding, B. F. de Silva for advice. B. F. was one of the straightest of men, both at the Bar and in public affairs. He was a man of few words and never wasted the time of the court. He was, at this time, a senior member of the Bar, but got few retainers because each year he raised his fee by one guinea in order that the juniors might get some work.

Would that other seniors followed that example instead of concentrating on their welfare. B. F. was glad to see my father, and welcomed me. His advice to me was crisp and concise, and typical of the man. He said “All I can tell you is this. You are a Barrister-at-law but you don’t know our law. Therefore read our Law Reports from the first to the current volume. Secondly, an advocate’s fee is one guinea. Don’t be ashamed to accept that fee, but don’t appear for two or three rupees and a bundle of cigars as some others seem to be doing. Thirdly, never sign a proctor’s receipt for more than the actual fee paid to you.” And that was all. How correct this advice was will be seen later.

In my practice I was clean and had no contact with the touts who used to hang about the banyan trees that adorn the court premises. I was working in the Chambers of N. K. Choksy, another straight man at the Bar and a perfect gentleman. He was meticulous in his work and I learned a great deal from him, particularly in giving attention to the smaller matters of detail which appeared to weigh heavily with him. He used to spend many hours settling mortgage bonds for which he was well paid. He told me that great care had to be used in drafting pleadings as the entire responsibility would be on you when the matter came to court, and then it would be too late to admit your error.

At the beginning, there was very little work for a Junior. My father’s friend, Francis de Zoysa, K. C., told me that if, at the end of my first year, I averaged four guineas a month, I should consider myself very lucky and as getting on in the profession. According to the fee book which I kept, the fees I earned during my few years in practice did not hit the target, although they came pretty near, which I thought was good according to Francis de Zoysa’s estimate.

My proctor relatives in the outstations and the proctors in my home town, Panadura, used to send me work whenever they could, work in the original courts as well as in appeal, and I took great pains over the study of my briefs.

I received my first brief in the Panadura Magistrate’s court within seven days of my taking my oaths as an advocate and was junior to H. A. P. Sandrasagara, K. C. This eminent silk, well built and very dark in complexion, spoke such good English that if one heard him behind a screen one would have thought it was an Englishman speaking. When my father heard that Sandara, as everyone called him, was to lead me as his junior in my first case, he invited the silk to lunch on the day of the case. The invitation was accepted as the two old gentlemen were friends and as there was no rest house in the town.

He arrived and, while driving from my father’s house to the court, I asked him what he thought about the case. “Which case?” he asked. I said “Today’s case” and he inquired whether I had read the brief. I replied that this was my first case and that I knew my brief inside out. “Young man,” he said seriously, “Take the advice of an old hand. Never study your brief. Always go into court with an open mind.” He was experienced enough to go into court with an open mind, and he won his case too.

There was R. L. Pereira, K. C., a classmate of my father, a dominant personality, who studied his brief so thoroughly that he carried all the facts in his head. He appeared in all the biggest trials, rape, arson, murder, we have had. On one occasion, in a criminal trial, he was opposed to his son R. G. C. who died young. At one stage there was a heated argument between counsel when R. L. said “My learned friend is too old, he has forgotten his law.” After the case, both counsel walked out of court, the incident forgotten, and the son offering the father a cigarette out of his case. Such is the camaraderie of the Bar. Years later, I met R. L. at a party. I went up to him and asked whether he could place me. For a moment he thought and, with that marvellous memory of his, said “Yes, Edmund’s son.”

I have been junior to nearly every King’s Counsel practising at that time. Of them I had the highest regard and respect for F. A. Hayley, who carried with him all the traditions of the English Bar. Without casting any reflection on the other silks at the time, I should like to say this of Hayley. He was the only silk who ever asked me whether I had been paid a proper fee. Bar practice requires that a junior should be paid one-third to half his senior’s fee.

In my first case as Hayley’s junior, he came into the District Court of Colombo fifteen minutes before time and asked me “Have you been feed?” I told him that I had been given a fee and he asked “How much?” I said “One”. He was angry, said he was not appearing in the case until I had been paid my proper fee, and said “Let’s clear out of court”. He then called the proctor and demanded that I be paid my fee. I was then given a further nine guineas, which Hayley asked me to count, after which he marked his appearance in court.

During the case, Hayley asked me only one question “How many square yards are there in an acre?” The case had something to do with a rubber estate with trees planted 15 feet by 15 instead of the normal 18 feet by 18; hence the square yardage. I had to rush to the Law Library and consult Ferguson’s Directory to give Hayley the answer. He once obliged the court by reading a fidei commissum deed which was in Sinhala and which counsel on the other side, a Sinhalese, was unable to read.

H. V. Perera, Q. C. once came to court prepared in a case which, if it was taken up, would have lasted a few days. For some reason, this case was allowed to stand down and another of his cases called. He rose. There was not a mark on his brief. He had not read it. The judges were Garvin and Akbar. He turned to the plaint and summarized it to the Bench. He next read the defendant’s answer, and now knew what the dispute was about.

He then read the issues and had got to the crux of the matter when one of the judges asked him what the trial judge had held on issue four. Quickly, he turned to the judgment and told their Lordships that it would be best if he read the entire judgment to them. Having read it, he put his brief aside, argued a matter of law without reading any of the evidence, and won his case.

A. R. H. Canakeratne had a wonderful memory. He was a simple and a studious man who came daily to the Law Library but did not appear in the courts. He had a large consulting practice. I once had to go to his residence for a consultation and expected to see an extensive library. Instead, I found a small bookcase with a dozen odd volumes of the New Law Reports. The rest of the law he carried in his head.

Sometimes, when a judge put a question to counsel arguing an appeal, Canaks would tug at counsel’s gown and whisper 13 N. L. R. page 43, and that settled the matter. How he carried all this in his head surprised everyone who came in touch with him. In a case of mine, I had looked up all the law to discover a point in my favour but found none. In the end, I went to Canaks and asked him whether he could assist me.

He was always willing to help a junior. When I mentioned my difficulty, he scratched his head for some time, thinking, and then said “You are right. There is no reported case on the point, but if you look at 23 N. L. R. p. 345, you might find three lines in the judgment of the Privy Council which might help you.” And there it was, exactly as he had said.

He had some trouble with his voice, and that was the reason he refused to argue cases in court. If his friends persuaded him to appear, he was brilliant in his argument. After a few appearances in court, he took silk and was shortly afterwards elevated to the Bench.

I remember W. H. Perera, brother of E. W., who had an extensive practice in the District Court of Colombo in land and partition cases. It was W. H. who, in tracing the pedigree in a partition case where the litigants were poor persons, referred to two sections of the descendants of the original owner who had married twice, as being of the first and the second mat respectively. He was a classical scholar and a teetotaller.

There was E. G. P. Jayatilleke, K. C., a leading silk in my time and a charming gentleman. He had a fund of humour and used to entertain us, juniors, with his jokes. In passing, I should like to pay my tribute to F. H. B. Koch, M. T. de S. Amarasekera, N. Nadarajah, C. Nagalingam and his brother Thiagalingam, N. E. Weerasooria, Lalitha Rajapakse, and Gratiaen, whose junior I have been at one time or another. There were G. G. Ponnambalam and Dr Colvin R. de Silva, neither of whom used a small word if a bigger one was available. Colvin never spoke of a page in a book; it was “pagination”, and with him the evidence of a witness was always “testification”. These two friends were small editions of Dr Samuel Johnson.

For a short time with us was Miss Mehta, a Parsee Barrister. When I was working in Choksy’s Chambers one day, he received a letter from Miss Mehta who was then in London, inquiring whether he would have her in his Chambers on her return to Ceylon. Choksy did not like the proposal at all. I told him that he ought to help the only member of his community at the Bar and he agreed on one condition, that I would always be in his Chambers when Miss Mehta was there.

In the Law Library, Choksy sat at the head of our table. He appeared to have a prescriptive right to the seat and no one dared to sit in his seat if he was present. There was Hayley. Others at this table were D.S. Jayawickrama, D. W. Fernando, N. M., son of B. F. de Silva, J. L. M. and H. N. G. Fernando and the lone woman Miss Mehta. At other tables sat my friends Kariapper, Manikkavasagar, Sivagnanasundaram, Panditha Gunawardena, O. L. de Kretser and D. J. R. Gunawardena, later all judges.

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Features

Rebuilding the country requires consultation

Published

5 hours ago

2026/01/13

Sahan Weerasooriya

A positive feature of the government that is emerging is its responsiveness to public opinion. The manner in which it has been responding to the furore over the Grade 6 English Reader, in which a weblink to a gay dating site was inserted, has been constructive. Government leaders have taken pains to explain the mishap and reassure everyone concerned that it was not meant to be there and would be removed. They have been meeting religious prelates, educationists and community leaders. In a context where public trust in institutions has been badly eroded over many years, such responsiveness matters. It signals that the government sees itself as accountable to society, including to parents, teachers, and those concerned about the values transmitted through the school system.

This incident also appears to have strengthened unity within the government. The attempt by some opposition politicians and gender misogynists to pin responsibility for this lapse on Prime Minister Dr Harini Amarasuriya, who is also the Minister of Education, has prompted other senior members of the government to come to her defence. This is contrary to speculation that the powerful JVP component of the government is unhappy with the prime minister. More importantly, it demonstrates an understanding within the government that individual ministers should not be scapegoated for systemic shortcomings. Effective governance depends on collective responsibility and solidarity within the leadership, especially during moments of public controversy.

The continuing important role of the prime minister in the government is evident in her meetings with international dignitaries and also in addressing the general public. Last week she chaired the inaugural meeting of the Presidential Task Force to Rebuild Sri Lanka in the aftermath of Cyclone Ditwah. The composition of the task force once again reflects the responsiveness of the government to public opinion. Unlike previous mechanisms set up by governments, which were either all male or without ethnic minority representation, this one includes both, and also includes civil society representation. Decision-making bodies in which there is diversity are more likely to command public legitimacy.

Task Force

The Presidential Task Force to Rebuild Sri Lanka overlooks eight committees to manage different aspects of the recovery, each headed by a sector minister. These committees will focus on Needs Assessment, Restoration of Public Infrastructure, Housing, Local Economies and Livelihoods, Social Infrastructure, Finance and Funding, Data and Information Systems, and Public Communication. This structure appears comprehensive and well designed. However, experience from post-disaster reconstruction in countries such as Indonesia and Sri Lanka after the 2004 tsunami suggests that institutional design alone does not guarantee success. What matters equally is how far these committees engage with those on the ground and remain open to feedback that may complicate, slow down, or even challenge initial plans.

An option that the task force might wish to consider is to develop a linkage with civil society groups with expertise in the areas that the task force is expected to work. The CSO Collective for Emergency Relief has set up several committees that could be linked to the committees supervised by the task force. Such linkages would not weaken the government’s authority but strengthen it by grounding policy in lived realities. Recent findings emphasise the idea of “co-production”, where state and society jointly shape solutions in which sustainable outcomes often emerge when communities are treated not as passive beneficiaries but as partners in problem-solving.

Cyclone Ditwah destroyed more than physical infrastructure. It also destroyed communities. Some were swallowed by landslides and floods, while many others will need to be moved from their homes as they live in areas vulnerable to future disasters. The trauma of displacement is not merely material but social and psychological. Moving communities to new locations requires careful planning. It is not simply a matter of providing people with houses. They need to be relocated to locations and in a manner that permits communities to live together and to have livelihoods. This will require consultation with those who are displaced. Post-disaster evaluations have acknowledged that relocation schemes imposed without community consent often fail, leading to abandonment of new settlements or the emergence of new forms of marginalisation. Even today, abandoned tsunami housing is to be seen in various places that were affected by the 2004 tsunami.

Malaiyaha Tamils

The large-scale reconstruction that needs to take place in parts of the country most severely affected by Cyclone Ditwah also brings an opportunity to deal with the special problems of the Malaiyaha Tamil population. These are people of recent Indian origin who were unjustly treated at the time of Independence and denied rights of citizenship such as land ownership and the vote. This has been a festering problem and a blot on the conscience of the country. The need to resettle people living in those parts of the hill country which are vulnerable to landslides is an opportunity to do justice by the Malaiyaha Tamil community. Technocratic solutions such as high-rise apartments or English-style townhouses that have or are being contemplated may be cost-effective, but may also be culturally inappropriate and socially disruptive. The task is not simply to build houses but to rebuild communities.

The resettlement of people who have lost their homes and communities requires consultation with them. In the same manner, the education reform programme, of which the textbook controversy is only a small part, too needs to be discussed with concerned stakeholders including school teachers and university faculty. Opening up for discussion does not mean giving up one’s own position or values. Rather, it means recognising that better solutions emerge when different perspectives are heard and negotiated. Consultation takes time and can be frustrating, particularly in contexts of crisis where pressure for quick results is intense. However, solutions developed with stakeholder participation are more resilient and less costly in the long run.

Rebuilding after Cyclone Ditwah, addressing historical injustices faced by the Malaiyaha Tamil community, advancing education reform, changing the electoral system to hold provincial elections without further delay and other challenges facing the government, including national reconciliation, all require dialogue across differences and patience with disagreement. Opening up for discussion is not to give up on one’s own position or values, but to listen, to learn, and to arrive at solutions that have wider acceptance. Consultation needs to be treated as an investment in sustainability and legitimacy and not as an obstacle to rapid decisionmaking. Addressing the problems together, especially engagement with affected parties and those who work with them, offers the best chance of rebuilding not only physical infrastructure but also trust between the government and people in the year ahead.

by Jehan Perera

Features

PSTA: Terrorism without terror continues

Published

5 hours ago

2026/01/13

Sahan Weerasooriya

When the government appointed a committee, led by Rienzie Arsekularatne, Senior President’s Counsel, to draft a new law to replace the Prevention of Terrorism Act (PTA), as promised by the ruling NPP, the writer, in an article published in this journal in July 2025, expressed optimism that, given Arsekularatne’s experience in criminal justice, he would be able to address issues from the perspectives of the State, criminal justice, human rights, suspects, accused, activists, and victims. The draft Protection of the State from Terrorism Act (PSTA), produced by the Committee, has been sharply criticised by individuals and organisations who expected a better outcome that aligns with modern criminal justice and human rights principles.

This article is limited to a discussion of the definition of terrorism. As the writer explained previously, the dangers of an overly broad definition go beyond conviction and increased punishment. Special laws on terrorism allow deviations from standard laws in areas such as preventive detention, arrest, administrative detention, restrictions on judicial decisions regarding bail, lengthy pre-trial detention, the use of confessions, superadded punishments, such as confiscation of property and cancellation of professional licences, banning organisations, and restrictions on publications, among others. The misuse of such laws is not uncommon. Drastic legislation, such as the PTA and emergency regulations, although intended to be used to curb intense violence and deal with emergencies, has been exploited to suppress political opposition.

International Standards

The writer’s basic premise is that, for an act to come within the definition of terrorism, it must either involve “terror” or a “state of intense or overwhelming fear” or be committed to achieve an objective of an individual or organisation that uses “terror” or a “state of intense or overwhelming fear” to realise its aims. The UN General Assembly has accepted that the threshold for a possible general offence of terrorism is the provocation of “a state of terror” (Resolution 60/43). The Parliamentary Assembly of the Council of Europe has taken a similar view, using the phrase “to create a climate of terror.”

In his 2023 report on the implementation of the UN Global Counter-Terrorism Strategy, the Secretary-General warned that vague and overly broad definitions of terrorism in domestic law, often lacking adequate safeguards, violate the principle of legality under international human rights law. He noted that such laws lead to heavy-handed, ineffective, and counterproductive counter-terrorism practices and are frequently misused to target civil society actors and human rights defenders by labelling them as terrorists to obstruct their work.

The United Nations Office on Drugs and Crime (UNODC) has stressed in its Handbook on Criminal Justice Responses to Terrorism that definitions of terrorist acts must use precise and unambiguous language, narrowly define punishable conduct and clearly distinguish it from non-punishable behaviour or offences subject to other penalties. The handbook was developed over several months by a team of international experts, including the writer, and was finalised at a workshop in Vienna.

Anti-Terrorism Bill, 2023

A five-member Bench of the Supreme Court that examined the Anti-Terrorism Bill, 2023, agreed with the petitioners that the definition of terrorism in the Bill was too broad and infringed Article 12(1) of the Constitution, and recommended that an exemption (“carve out”) similar to that used in New Zealand under which “the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person” committed the wrongful acts that would otherwise constitute terrorism.

While recognising the Court’s finding that the definition was too broad, the writer argued, in his previous article, that the political, administrative, and law enforcement cultures of the country concerned are crucial factors to consider. Countries such as New Zealand are well ahead of developing nations, where the risk of misuse is higher, and, therefore, definitions should be narrower, with broader and more precise exemptions. How such a “carve out” would play out in practice is uncertain.

In the Supreme Court, it was submitted that for an act to constitute an offence, under a special law on terrorism, there must be terror unleashed in the commission of the act, or it must be carried out in pursuance of the object of an organisation that uses terror to achieve its objectives. In general, only acts that aim at creating “terror” or a “state of intense or overwhelming fear” should come under the definition of terrorism. There can be terrorism-related acts without violence, for example, when a member of an extremist organisation remotely sabotages an electronic, automated or computerised system in pursuance of the organisation’s goal. But when the same act is committed by, say, a whizz-kid without such a connection, that would be illegal and should be punished, but not under a special law on terrorism. In its determination of the Bill, the Court did not address this submission.

PSTA Proposal

Proposed section 3(1) of the PSTA reads:

Any person who, intentionally or knowingly, commits any act which causes a consequence specified in subsection (2), for the purpose of-

(a) provoking a state of terror;

(b) intimidating the public or any section of the public;

(c) compelling the Government of Sri Lanka, or any other Government, or an international organisation, to do or to abstain from doing any act; or

(d) propagating war, or violating territorial integrity or infringing the sovereignty of Sri Lanka or any other sovereign country, commits the offence of terrorism.

The consequences listed in sub-section (2) include: death; hurt; hostage-taking; abduction or kidnapping; serious damage to any place of public use, any public property, any public or private transportation system or any infrastructure facility or environment; robbery, extortion or theft of public or private property; serious risk to the health and safety of the public or a section of the public; serious obstruction or damage to, or interference with, any electronic or automated or computerised system or network or cyber environment of domains assigned to, or websites registered with such domains assigned to Sri Lanka; destruction of, or serious damage to, religious or cultural property; serious obstruction or damage to, or interference with any electronic, analogue, digital or other wire-linked or wireless transmission system, including signal transmission and any other frequency-based transmission system; without lawful authority, importing, exporting, manufacturing, collecting, obtaining, supplying, trafficking, possessing or using firearms, offensive weapons, ammunition, explosives, articles or things used in the manufacture of explosives or combustible or corrosive substances and biological, chemical, electric, electronic or nuclear weapons, other nuclear explosive devices, nuclear material, radioactive substances, or radiation-emitting devices.

Under section 3(5), “any person who commits an act which constitutes an offence under the nine international treaties on terrorism, ratified by Sri Lanka, also commits the offence of terrorism.” No one would contest that.

The New Zealand “carve-out” is found in sub-section (4): “The fact that a person engages in any protest, advocacy or dissent or engages in any strike, lockout or other industrial action, is not by itself a sufficient basis for inferring that such person (a) commits or attempts, abets, conspires, or prepares to commit the act with the intention or knowledge specified in subsection (1); or (b) is intending to cause or knowingly causes an outcome specified in subsection (2).”

While the Arsekularatne Committee has proposed, including the New Zealand “carve out”, it has ignored a crucial qualification in section 5(2) of that country’s Terrorism Suppression Act, that for an act to be considered a terrorist act, it must be carried out for one or more purposes that are or include advancing “an ideological, political, or religious cause”, with the intention of either intimidating a population or coercing or forcing a government or an international organisation to do or abstain from doing any act.

When the Committee was appointed, the Human Rights Commission of Sri Lanka opined that any new offence with respect to “terrorism” should contain a specific and narrow definition of terrorism, such as the following: “Any person who by the use of force or violence unlawfully targets the civilian population or a segment of the civilian population with the intent to spread fear among such population or segment thereof in furtherance of a political, ideological, or religious cause commits the offence of terrorism”.

The writer submits that, rather than bringing in the requirement of “a political, ideological, or religious cause”, it would be prudent to qualify proposed section 3(1) by the requirement that only acts that aim at creating “terror” or a “state of intense or overwhelming fear” or are carried out to achieve a goal of an individual or organisation that employs “terror” or a “state of intense or overwhelming fear” to attain its objectives should come under the definition of terrorism. Such a threshold is recognised internationally; no “carve out” is then needed, and the concerns of the Human Rights Commission would also be addressed.

by Dr. Jayampathy Wickramaratne
President’s Counsel

Features

ROCK meets REGGAE 2026

Published

5 hours ago

2026/01/13

Sahan Weerasooriya

JAYASRI: From Vienna, Austria

We generally have in our midst the famous JAYASRI twins, Rohitha and Rohan, who are based in Austria but make it a point to entertain their fans in Sri Lanka on a regular basis.

Well, rock and reggae fans get ready for a major happening on 28th February (Oops, a special day where I’m concerned!) as the much-awaited ROCK meets REGGAE event booms into action at the Nelum Pokuna outdoor theatre.

It was seven years ago, in 2019, that the last ROCK meets REGGAE concert was held in Colombo, and then the Covid scene cropped up.

Chitral Somapala with BLACK MAJESTY

This year’s event will feature our rock star Chitral Somapala with the Australian Rock+Metal band BLACK MAJESTY, and the reggae twins Rohitha and Rohan Jayalath with the original JAYASRI – the full band, with seven members from Vienna, Austria.

According to Rohitha, the JAYASRI outfit is enthusiastically looking forward to entertaining music lovers here with their brand of music.

Their playlist for 28th February will consist of the songs they do at festivals in Europe, as well as originals, and also English and Sinhala hits, and selected covers.

Says Rohitha: “We have put up a great team, here in Sri Lanka, to give this event an international setting and maintain high standards, and this will be a great experience for our Sri Lankan music lovers … not only for Rock and Reggae fans. Yes, there will be some opening acts, and many surprises, as well.”

Rohitha, Chitral and Rohan: Big scene at ROCK meets REGGAE

Rohitha and Rohan also conveyed their love and festive blessings to everyone in Sri Lanka, stating “This Christmas was different as our country faced a catastrophic situation and, indeed, it’s a great time to help and share the real love of Jesus Christ by helping the poor, the needy and the homeless people. Let’s RISE UP as a great nation in 2026.”