1. IDEAS IN ORGANIZING THE CONCILIATION BOARD

The architect of the mandatory Conciliation Board scheme was M. W. H. de Silva, the then Minister of Justice in the socialist coalition which was propelled into power at the General Election in 1956.

One of the more controversial issues confronted by the Soulbury Commission on Constitutional Reform related to the establishment of a Ministry of Justice. While the protagonists believed that the law-enforcement and prosecutorial agencies should come under the supervision of a Cabinet Minister, many opposed such a proposal on the ground that it would heighten executive control over judicial administration and undermine the independence and the impartiality of the courts of law. The Constitutional Commission was forced to compromise. The Constitution did provide for a Ministry of Justice but its powers were curtailed. The Attorney General remained the principal legal adviser to the government and exercised all statutory powers regarding the indictment, prosecution and composition of criminal offences.

De Silva however had a conception of his role as the Minister of Justice fundamentally different from that of most of his predecessors. He saw himself primarily as a tireless reformist who would direct his energies towards the overhauling of the administration of justice to render it both more efficient and responsive to the needs of poor litigants.

Unlike many of his professional colleagues de Silva was for many years disturbed by popular dissatisfaction with the administration of justice. This is clearly seen in the speech he delivered at the ceremonial welcome accorded by the members of the Bar on his appointment to the Supreme Court. Such occasions were often punctuated by the exchange of pleasantries between the new appointee and the Attorney General, with the former often reminiscing on the illustrious legal career which culminated in his judicial appointment. It was rarely an occasion for serious reflection on the workings of the judicial system. M. W. H. de Silva however did seize upon this opportunity to address these larger issues. He began by drawing attention to what he described as “the very unsatisfactory conditions of litigation in the Island both in the criminal as well as the civil departments”. He bemoaned the hardships to litigants caused by the dilatoriness of the courts in processing land disputes, and the pain and anxiety which the accused and their relatives suffered as a result of the long delay between arrest and trial in criminal proceedings. “This state of affairs,” he pointed out, is “due to the fact that the arrangements made for litigation in this Island have now proved to be not sufficiently elastic, and not sufficiently adequate, in view of the present state of affairs in the country”.² He added “that increasing litigation, and the more elaborate proceedings with regard to litigation, have made the present conditions in the Court inadequate to meet the demands of the times”. (Ceylon Law Recorder, 1946: XV.)

While conceding that there were inherent problems in the organization of judicial institutions which prevented the system from responding to new demands and pressures, he implied that the profession was not entirely without blame for bringing about this state of affairs. He underscored the special obligation on both the judiciary and the Bar to ensure the effective and smooth functioning of the courts of law and urged the Bar to take several positive steps to accelerate the clearance of court dockets.³

When M.

It soon became clear that litigiousness could not be reduced by merely tinkering with the procedures of the regular courts of law. What was necessary was a new institutional form stripped of the technicalities and procedural rituals of the regular courts of law (ibid.). At public meetings and in memorandum submitted by the public to the Ministry it was frequently proposed that such a body be set up composed of [indigenous] ayurvedic physicians, teachers, priests, etc.”⁶ M. W. H. de Silva was familiar with the scheme of voluntary conciliation set up by the police and state agencies since the thirties, and the more spontaneous Conciliation Boards which were established in Panadura and Moratuwa. He appears also to have been deeply impressed by the Nyaya Panchayats (Dharma Councils of Five Persons) in India, and secured through the assistance of the High Commission data on their constitution and operation.⁷ In a memorandum to the cabinet issued in 1957 he “argued the need for legislation to provide an inexpensive and speedy means of promoting harmony among persons estranged by evil disputes or breaches of certain penal laws by amicably settling these disputes and compounding the offences arising out of those breaches.”⁸ That the reform was intended to deflect the flow of complaints and disputes from the regular courts of law to a new conflict-resolving mechanism is underscored in other official documents.