4. SHIFTING IDEOLOGIES OF THE SCHEME, 1958–65
Each of these perspectives competed with the others for the dominance of the Ministry of Justice policy at various periods of time. M. W. H. de Silva's reformist approach appears to have guided the implementation of the Conciliation Boards scheme during the first decade.
The authority which a Minister of Justice normally enjoys over the formulation of governmental legal policy was strengthened in this instance by certain personal qualities of the Minister. He was an authoritarian figure who maintained strict discipline over both the executive and clerical members of his staff4. His commitment to a cause which he believed in was total, and he fervently believed that the Conciliation Boards Act was perhaps the most significant legislative reform he had introduced during his association with the Ministry (see references in Note 22). His interest in the Conciliation Boards scheme was such that he even became personally involved in the execution of the various administrative responsibilities prescribed by the Act. He rested the initiative (which the Act seemed to vest in local communities) on the constitution of Boards by urging Governmental Agents and District Revenue Officers to identify two village council areas in each District which were suitable for the establishment of Conciliation Boards. He appears to have relied more on such official recommendations rather than the opinion of local residents in deciding whether a panel should be constituted.23 Despite his enthusiasm for the scheme the Minister appears to have moved cautiously in both the constitution and establishment of Conciliation Boards. During the first year of the Act's operation no more than twenty Boards were constituted, and their terms of office were limited to two years, which was a year less than that permissible under the Act23 (cf. Goonesekere & Metzger, 1971: 35, 76). The Minister appears to have summoned and personally attended meetings of the community in a locality in which the Act was to be implemented. At such meetings the suitability of proposed candidates for appointment as conciliators was openly discussed. The local police officers who were usually required to be in attendance during these sessions were also asked to report on the character of various candidates.24 M. W. H. de Silva's desire to ensure that conciliators would retain the impartiality and detachment of judicial officers and adhere to the precepts of procedural fairness of the British adjudicatory system is seen in his insistence that Members of Parliament be excluded from the list of persons eligible under the Act to make recommendations towards the appointment of Conciliators.24 It would also appear that active political involvement by a candidate would be considered a disqualification by de Silva.Since M. W. H. de Silva's resignation from the Cabinet, there were a series of domestic disturbances which led to a lull in the implementation of the Act from 1959 to 1962 (Goonesekere & Metzger, 1971: 75–76). Towards the end of 1961 the then Minister of Justice gave serious consideration to the reimplementation of the scheme.25 He appointed a Ministerial Committee composed of Chairmen of Conciliation Boards and a Ministry of Justice official to study the Act and make appropriate recommendations towards its revision.26 Several policy changes on problems as varied as the recruitment of conciliators, remuneration for their services, the panel's relationship to the regular courts of law and other state agencies, and the role of party representatives and members of Parliament, were examined by this Committee. These questions were given further consideration at a meeting between the Committee and the Minister of Justice, Sam P. C. Fernando. A review of the discussion at this meeting provides a valuable insight as to how Ministry of Justice officials perceived and responded to some of the problems of implementing the scheme.27
One of the Ministry officials present at the discussion inquired whether an educational qualification should be required of Conciliators.
No other participant appears to have favoured such a general requirement. Some, however, felt that the Chairman should be one who already enjoys some position of responsibility in the community. One participant suggested the appointment of an administrative official such as the Revenue Officer. While another participant raised the possible appointment of a lawyer, or at least a Justice of the Peace. The latter proposal was strenuously opposed by almost all other participants including the Minister. The consensus was that it was more important that the Chairman should be an individual who resides in the community in which the Board operates than that he should have some special qualification. Although there appears to have been earlier agitation on the part of conciliators that they should be compensated for their services,28 the Ministers took a firm stand in favour of the existing scheme of honorary conciliators.The absence of a special mechanism for the enforcement of settlements reached by Conciliation Boards was perceived as a major flaw in the entire scheme.28 A closer co-ordination between the Conciliation Boards and the regular courts of law and other state agencies was felt to be necessary to strengthen both the authority of the Boards and the effectiveness of their settlements. One member suggested a fusion of the Conciliation Boards and the Rural Courts as one of the ways in which the objective of closer institutional collaboration can be achieved. Another suggestion which seems to have received considerable support was that the Boards should enjoy the authority to transmit settlements directly to the regular courts of law for enforcement as the decree of such courts. The Minister reiterated the importance of close cooperation between the Police, Rural Organizations and the Boards, while not expressing a view on any of the specific proposals.
Clearly one of the more sensitive issues raised at this meeting was the role of elective political officials such as the Members of Parliament in the working of the Conciliatory scheme.
Although the Committee appears to have been sensitive to the possibility that such a reform could lead to the politicization of the scheme, they conceded without much discussion that a Member of Parliament would inevitably have to be consulted before a panel could be constituted in his electorate. This represented an important policy shift, since it signalled a growing transfer of the statutory powers vested in Ministry officials to elective political officials. The Committee was, however, silent on the question of whether the local Parliamentarian should also become involved in the recruitment process. These deliberations, while providing a valuable insight into the state of thinking within the Ministry of Justice, also resulted in four major amendments in 1963.The first related to an expansion in the operation of the Act from rural to urban areas. This step seemed to signify both government's recognition that “litigiousness” was not peculiar to rural areas, and its increasing confidence in the capacity of the Conciliation Boards scheme to deal with this phenomenon in all areas of the country. Secondly, the amending Act eliminated the requirement that an oath be administered on all persons who offered testimony before the Board. The purpose of this reform was to increase the informality of these proceedings and to reduce the likelihood of harassment of witnesses by hostile Board members.29 Thirdly, the finality and enforceability of settlements were strengthened in turn by imposing a thirty-day limitation on the repudiation of settlements, and by attaching to settlements entered into by Boards the same enforceability as that of a decree of a court of law. Fourthly, the authority of Conciliation Boards was enhanced by establishing a special procedure for the prosecution of those who acted in contempt of their powers.
To sum up, the overall strategy during the period 1963–65 was then to continue the reformist policies of M. W. H. de Silva. One of the members of the Ministerial Committee emphasized this orientation when he pointed out that their main objective was to ensure “that justice is meted out to those who cannot go to court to settle their disputes.”30 The purpose of the 1963 amendments was to enable the state to pursue these policies more comprehensively and effectively.
Subject to an overall simplicity in objectives and goals between this and the 1958–61 period, we perceive two other trends. Firstly, we notice the Ministry successfully resisting moves on the part of some officials to formalize and judicialize the Conciliation Boards scheme by assailing the apparent non-differentiation in education, social standing or official rank of conciliators and other members of the community, and the voluntary and honorary character of their duties. Secondly, we perceive a step towards the politicization of the scheme through a recognition of, and concession to, the growing power and importance of the local Member of Parliament and the representative of the ruling political parties. Even before the formal enactment of the Conciliation Boards Bill there was widespread public apprehension that such a scheme would fall victim to the political factionalism which had overwhelmed many other social and charitable organizations instituted by the state.31 During the legislative debates on the 1963 Amendments, opposition members repeated the charge that these Boards had become the instruments with which the ruling party harassed its political opponents.32Although such charges were vehemently denied by official spokesmen, our discussion points to a relaxation in the Ministry of Justice policy which had previously excluded elected political officials and party representatives from any involvement in the operation of the Act.