H. L. de Silva:

Fearless defender of the Bar

R. K. W. Goonesekera

H. L. de Silva

Within the short space of a few months we saw the passing away of two legal giants - Mark Fernando, the great judge and H.L. de Silva, the great lawyer. One attended my classes in Peradeniya and the other attended classes with me in Colombo. I was a good friend of both.

H.L. went straight from University to Hulftsdorp to embark on a career in a profession that held little hope for the unknown. He had only his as yet undetected talent to help him. I went to Peradeniya after graduation and to a different life, and I lost touch with H.L. I did not see the discovery of his remarkable talent and his success after success at the Bar at first hand. But the publications of the law reports with his name appearing regularly was proof enough.

Writ litigation

It was the time that saw the awakening of the judiciary as executive decisions were being questioned through writs. H.L. with his sharp, analytical mind and good library excelled in writ litigation. It was also the time of great political activity and election petitions.

He became famous and a much sought after lawyer. This part of HL’s life was admirably covered by Lakshman Kadirgamar in his tribute on the occasion of HL completing 50 years at the Bar (This was again published in the newspapers after HL’s death). On the same occasion I said that one of his notable attributes was a fine speaking voice. In later life he added to that talent a fascinating command of the English language to express his thoughts and views.

HL was apolitical. A Methodist, the values of Christianity mattered to him and guided his life. Educated at St. Peters at a time when learning in English schools did not encourage in acquiring knowledge of the history and culture of the people, HL tended to be conservative in his attitudes.

When Sirimavo Bandaranaike became Prime Minister with Felix Dias, his old friend, as a powerful Minister, HL was dragged into SLFP circles but only as a brilliant lawyer to match the many big names in UNP ranks.

HL began to be seen as anti-UNP but I doubt if he ever became a SLFPer, a party that had joined with Marxists to push for radical policies to serve the people. HL’s approach to any controversial matter was always clinical and legal, devoid of emotion, a trait he carried to the end.

I met HL after many years when I came to practise. Even so, there was a feeling of togetherness as with old friends. He was the same reserved person whose only interest appeared to be the law. This of course did change as we all know. By this time, i.e., post - 1977, the ranks of lawyers appearing for the SLFP had depleted and I found myself a stop-gap for HL.

Constitutional law

The first great Constitutional law case, the Thirteenth Amendment to the Constitution, was one HL should have led for Sirima Bandaranaike who opposed the Amendment. But HL told me he had gone to the Timpu talks with the Government delegation led by HW Jayewardene and he thought it would be improper for him to challenge the Bill, which was the outcome of those talks.

Had HL not taken this strict view of professional ethics and appeared before the Supreme Court, given his ability and the insights into LTTE goals that he had gained in Timpu he might have swung the odd vote that was needed to defeat the Bill.

It surprised many that HL should accept the offer of going to New York as our Permanent Representative to the UN. I saw it as a much needed break from the arduous life of Hulftsdorp. As could be expected Manel, who played an important part when HL was perfecting his arguments to Court too welcomed it. By the time he returned many Constitutional issues were in the melting pot and President Chandrika was ever consulting HL.

His views were often sought during the difficult times when the UNP Government was in power. He prevented the Government’s attempt to dilute the President’s power to dissolve Parliament by a constitutional Amendment and succeeded in gaining back key Ministries for the President after a Reference to the Supreme Court. In all this and other important issues and litigation Lakshman Kadirgamar and I were closely associated with HL.

Analyzing theories

HL gradually became preoccupied in Constitutional law studies. In Timpu, he was suddenly faced with the possibility of the division of the country as he wanted to remember it. This he saw as a terrible wrong, constitutionally and historically.

It had to be stopped and he devoted his time, putting law books aside, to reading and analyzing theories of federalism and accommodating minority rights. He was not moved by pleas for devolution which he could only see as the beginning of separatism. On this we would argue and agree to disagree.

He did not think changes had taken place rapidly in the political scene that could not be put right without major changes like the Provincial Council system. There was nothing communal in his conclusions and no invective was ever used on those who held a different view.

HL became concerned that there could be a wrong perception of him. When his many articles and speeches rejecting devolution and federalism were being collected for publication, HL even from his sickbed told me that he hoped to write something new that would provide a deeper philosophical basis - the thread that runs through his writings.

He did not live long enough to do that.Lastly, I like to pay a tribute to an important aspect of HL’s life that I saw. HL was a member of the black-coated fraternity and pound to be so. In a way he did not easily fit into a profession that had a penchant for gossip, salacious anecdotes and ribaldry.

Once his work was done he quickly went home without sitting at a table in the Lawyers Lounge. But his decency and good judgment impressed everyone; they had great respect for him.

After 1977, the challenge to the UNP Government came from the Bar which was strongly anti-UNP. Presidents of the Bar Association were elected on this ticket. HL as the acknowledged leader of the Bar was persuaded to come forward as President.

HL got the opportunity to meet many outstation lawyers to whom he was only a name if not a legend, and also many young lawyers who were making their presence felt.

As President we saw a different HL who would espouse human rights causes without hesitation and this made him unpopular with the government. He led the Bar’s protest at the torture and killing of a young JVP lawyer by the police even to the extent of leading a march of lawyers in Hulftsdorp carrying a placard. The Bar’s united protest at the supersession of Justice Wanasundera as Chief Justice by President Jayawardene was at the same time.

Judicial etiquette

HL was not afraid to speak on behalf of the Bar even if it were to remonstrate with judges when they overlooked judicial etiquette. I remember a speech he made at a Bar Association gathering with judges present as invitees when he made scathing criticisms of them much to their annoyance. Later I told him that he had gone too far but he was unrepentant.

HL was not just one of the greatest lawyers of the country. He was a good and honourable man. It is difficult to lose such a friend and colleague. We all share with his wife, Manel and daughters in a deep sense of loss.