The Law Is An Ass – Mind Your Language!

By S. Ratnajeevan H. Hoole –APRIL 23, 2021

Prof. S. Ratnajeevan H. Hoole

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.

Fiscals

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.

Money

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.

Then Election Commissioners

Traffic Cases

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.

Lawyer’s Fees

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.

Unscrupulous Lawyers

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’.”

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