3. DIFFERENT RATIONALIZATIONS IN THE LEGISLATIVE PROCESS
This discussion hence leads us to the legislative debates on the Conciliation Boards Bill and the different perspectives which emerged on the goals of this legislation. Although the legislation in itself did not provoke a great deal of national controversy, the general feeling among the legislators was that it was an extremely important legal reform.20 One of the Ministers in the Bandaranayake Government described the Bill as one which would take ?pride of place’ among all legislation concerning legal reform.21Although legislators of all political shades were generally very enthusiastic about the proposed reform, they seemed to rationalize it differently.
For the purpose of our analysis it would seem convenient to distinguish three different schools of opinion which we shall refer to as “reformists,” the “specialist legalists” and the “revivalists.”Firstly the “ reformists ”; those in this school looked upon the legislation as purely a judicial reform intended to enable the British court system to operate more efficiently and effectively. There is no effort here to question the judicial postulates or values which underline the court system; but an attempt to attribute the ineffectiveness of the court system; to the anachronistic procedures which have developed around it, or to inherent weaknesses in the moral characters of the disputants. M. W. H. de Silva seemed most representative of this position. He was anxious to uphold the integrity of the judicial system of which the courts were an essential component. Like the nineteenth-century reformists he felt that the willingness of the rural disputants to rush into the courts for even the most frivolous causes, and the corresponding inability of the court system to cope with the flood of litigation, bred public contempt for the judicial process.
One way of protecting the courts from such pressures was to establish a screening mechanism which would shut out those controversies amenable to amicable resolution. What was uppermost in de Silva's mind was the need for an efficient conflict-resolving mechanism to subdue the spirit of litigiousness which seemed to haunt the rural populace. Although implicit in de Silva's observations is a critique of the legal profession, the principal thrust of his attack is not, however, directed towards this occupational group. Although he conceded that the profession is one of the chief benefactors of the litigiousness in Ceylonese society, he did not regard this as being a principal contributory factor towards the malaise in the administration of justice. Nor did he seem profoundly disturbed by norms being weighted in favour of privileged social groups such as the landowners, employers, moneylenders and other secured creditors, as against tenants, employees and debtors.The “ socialist ” conception of the Conciliation Boards was however somewhat different. They perceived the legal system in classical Marxist terms as an instrument through which the dominant social class maintains its hold over the remainder of the populace. Correspondingly, legal norms, institutions and processes are geared to serve the objectives and the class interests of the dominant social groups. The legal profession, by reason of the class origins of its members and its fidelity to the existing legal order, is the intermediary through which the interests of the ruling class are safeguarded. During the British colonial period it served the interests of the colonial power and in the post-independent period that of its successor, the western-educated elite. Public antagonism towards the legal system often tends to concentrate on the role of lawyers as capricious exploiters of poor litigants and as the opponents of all social reform legislation. The object of the Conciliation Boards scheme was to reverse this pattern of legal domination.
The management of the legal system including that of the judicial process must pass from the elite class of legal specialists to the masses, and specially to those who came from lower levels of the social ladder. The new popular legal institutions and processes would, by facilitating the involvement of emergent social groups in judicial administration, transform the class orientation of the legal system by infusing its operation with a new social consciousness.Two of the legislators during the debates in the House of Representatives seemed to approach the Bill from this perspective. P. B. G. Kalugalla, one of the Ministers in the Cabinet, began his presentation by extolling the sagacity of the rural peasantry and their capacity to be excellent conciliators. He then underscored his antagonism to the existing court structure and its class orientation by expressing the hope that this legislation would lead to the closing down of all the courts of law in Kegalle.21 The controversial Minister of Agriculture, D. P. R. Goonewardene, a doctrinaire Marxist, seems to have shared similar perspectives on this problem. His concern was that the legislation did not go far enough. There were para-professionals in the rural communities popularly known as the village “ proctors” who had an interest in undermining the operation of this scheme. The provision enabling parties to repudiate settlements provided a loop-hole for such persons to induce parties to disregard the settlements and refer claims to a court of law. To render the scheme more effective, he would confer greater finality on a settlement entered into by the parties (ibid.).
The “revivalists” looked upon this legislation as an attempt to reinstitute the traditional village court which had been suppressed during much of the Anglo-colonial period. Unlike the reformists they were sensitive not merely to the formal differences between the traditional and the western judicial institutions, but also to the fundamentally distinct value postulates upon which the two systems were based (Cohn, 1967: 139–159).
The revivalists argued that the transplantation of an individualistic court system on a communal face-to-face society caused great confusion amongst societal members. Many such persons could have no proper comprehension of the purpose of new institutions which seemed strange and alien to them. They soon recognized that the proceedings in these new courts of law tended to be cumbersome and slow. Since the judge had no familiarity with local conditions and great faith was placed on procedural formalities, the villager found that he could with impunity forge documents and provide perjured testimony.22 The revivalists believed that the debasement of the values of the rural disputants brought about by alien institutions could be remedied by their substitution with legal forms more consistent with the central cultural traditions. Senator Somaratne appeared to be the leading spokesman of the revivalist camp. He provided a brief review of the traditional mechanism for conflict resolution in rural Ceylon, and drew attention to the essential continuity between the traditional and the contemporary models, and believed that the existence of such links would guarantee the success of the scheme. Similar arguments were advanced in the House of Representatives by T. B. Tennakoon.