5. SHIFTING IDEOLOGIES OF THE SCHEME, 1965–70
The succeeding period of 1965–70 witnessed for the first time the administration of the Act by a conservative government. Many feared that the new Minister of Justice would not display the same enthusiasm as his predecessors for what was regarded by some as a socialist reform.
But contrary to such expectations the application of the Act was progressively extended to different parts of the Island. The number of panels functioning at the commencement of this period was almost trebled towards the end of this period.33The Minister was even quoted as favouring the establishment of a Conciliation Board in every village in the country.34Despite the proposal to expand the coverage of the Act, there was generally a tendency during this period to treat the Conciliation Board as a somewhat subordinate tribunal competent to deal with only petty rural disputes. It was rationalized that such jurisdictional limitations would enhance the overall effectiveness of the scheme (cf. Note 34). In pursuance of this policy, instructions were issued by the Ministry of Justice to all Conciliation Board Chairmen to refrain from inquiring into complaints involving the Paddy Lands Act, the Rent Restriction Act, and disputes in which either the Crown or a Public Corporation was one of the parties to the controversy.35 It is, however, important to remember that such a de-emphasis of Conciliation Boards took place in an atmosphere of intense agitation by the profession against the full implementation of this scheme.
We have stated previously that the legal profession was caught flat-footed by the enactment of the Conciliation Boards Act, and that subsequently for several years both practising lawyers and even some lower-court judges continued to ignore its prescriptions (Tiruchelvam, 1971; Goonesekere & Metzger, 1971: 81).
But once the far-reaching implications of this legislation on the workings of the court system became clear to more members of the profession, they began to pressure the government to limit the scope of this reform. Several members of the Bar wrote newspaper articles or addressed memoranda to the Ministry protesting against the scope of this legislation and the manner of its operation. Professional Associations such as the Law Society presented memoranda to the Minister reviewing the Conciliation Boards, and proposing several amendments to the principal legislation.36 They were particularly apprehensive of the broad sweep of the panels’ jurisdiction, and questioned the capacity of lay conciliators to inquire into many disputes which were normally dealt with by law professionals. They cautioned that in the absence of proper procedural safeguards and the lack of technical competence on the part of conciliators, these tribunals could degenerate into corrupt and perverse instruments of oppression and thereby threaten the integrity of the entire system of judicial administration. They urged the government to curb the jurisdiction of the Boards, formalize their procedures, and subject them to the supervisory control of law professionals.37 The Law Commission which was required by the government to recommend amendments to the principal legislation reported along similar lines. One of its principal recommendations was to severely limit the jurisdiction of the Board to inquire into applications in which expeditious relief is claimed, and other disputes such as partition actions, mortgage claims, matrimonial causes, testamentary actions, etc.38 It also proposed that the scheme be made voluntary, and that settlements should be conferred the effectiveness of courts decrees only for the limited purposes of enforcement.38A negative posture towards this reform was initially adopted by the judiciary in a series of cases in which the jurisdictional limits of these tribunals was controverted.
The early judicial reaction was to contain the operation of the Conciliation Boards Act. A constitutional challenge to the mandatory effect of section 14 (1) of the Conciliation Boards Act was upheld by a District Court Judge in a highly publicized decision.39 The judgement reasoned that to the extent that this provision attempted to bar litigants who had not resorted to pre-trial conciliation from the regular courts of law, it was tantamount to an interference with the exercise of judicial power. In this and two other cases which reached the Supreme Court, the Court avoided the broader issue by upholding the jurisdiction of the courts of law on narrow technical grounds.40 The broader question relating to the mandatory effect of this Act was directly confronted in four successive cases in 1967 and 1968. In three of them, the Court affirmed the argument that resort to Conciliation Board was obligatory on all parties who intended to initiate action in the regular courts of law.41 In the other, Justice Alles held that such a proposition would be tantamount to an erosion of the jurisdiction vested in the established courts of law, and added that a citizen's right to seek redress from a court of law was so fundamental that it could not be taken away even by the legislature.42 In view of these conflicting judicial pronouncements, the legal position on whether resort to conciliation was optional or compulsory was left uncertain until a Divisional Bench of the Supreme Court clarified the law in 1970. In Nonahamy v. Silva, the Court held that a District Court had no jurisdiction to entertain even an application for an injunction where the parties had not previously referred the dispute to a Conciliation Board.43Another significant development during this period of administration of the Act was the increased politicization of the Conciliation Boards scheme. At a debate on the Appropriation Bill, it was charged that several Conciliation panels were reconstituted by the Government apparently because of the left-wing orientation of their Chairmen and other members.44 It was also charged that the Government had quite blatantly politicized the process by which conciliators were recruited, and had not made even a pretence of applying objective criteria in evaluating the suitability of applicants for appointment as conciliators.45 Not only did the government delegate the responsibility of recruitment to its local political representative (often the Member of Parliament), but it further provided him with a list of applicants, indicating the political affiliation of each candidate (see Note 45).
It was widely believed that appointment to Conciliation Boards was a form of political patronage freely disbursed by the local parliamentarian to his active political supporters.The Sun, a morning daily, in a strong editorial condemned the practice by which “the boards were becoming the political stooges of the party in power” and implored the government to purge politics out of the administration of the scheme so that the Boards may “function with an integrity for which all our legal institutions are justly famous” (The Sun, 15 October 1967). The Minister of Justice, however, defended the scheme, arguing that the exclusion of all persons with some involvement in politics would severely limit the pool of qualified candidates for appointment as Conciliators.46 One Member of Parliament pointed out that the appointment of party sympathizers was the inevitable although unfortunate by-product of a political process in which elected political officials feel obliged to reward their supporters with favours and honours in exchange for the support they had received during an electoral campaign.47
We also note that towards the end of this period there was considerable pressure from “revivalist” groups to restructure the Conciliation Boards to revive traditional values and interests, and to serve as the vehicles through which Buddhist precepts could be inculcated in the masses.48 This movement was spearheaded by a group of newspapers belonging to a consortium known as the Independent Newspapers of Ceylon, which were owned and managed by ultra-nationalistic and mildly conservative commercial interests in the country. (Europa Year Book, 1972: 319). These groups painted a romantic image of the harmony and amity in traditional Ceylonese society which they claimed was brought about by “the power of the truth which radiated from the village temple”.49 The dependence of the laity on the moral and spiritual guidance of the clergy was such that the entire community became akin to a “Council of Peace (Sama Mandalaya)” (see Note 49).
The factionalism and strife seen in the villages for the past two decades, they argued, was the result of the pernicious growth of party politics in rural areas and the increasing detachment between the “village” and the “temple” (ibid.). To correct this trend the “Maha Sangha” (the Supreme Monastic Council) should be drawn into the administration of the Conciliation Boards scheme, and “responsible, educated and disciplined” members of the clergy should be appointed as Chairmen of these tribunals.50 Such a step would result in the restoration of the stability and order which prevailed in the ancient village communities. The government however appears to have taken the firm position that, although members of the clergy would be given equal consideration with other candidates for appointment as conciliators, they would clearly not be appointed as chairmen.51We have attempted through a review of the various steps taken by the Ministry with respect to Conciliation Boards to reconstruct the overarching policy which seems to have guided the conservative government during this period. We have also drawn attention to various pressure groups such as the law professionals, and the ultra-nationalists who were attempting to push the government to adopt various conservative postures towards these tribunals. Although no composite picture emerges clearly from this account, we are able to discern certain distinct trends. The government appears to have downgraded the importance of this legislation as instituting no more than a procedural reform in the administration of justice. Although the number of tribunals were substantially increased, the state severely curbed the jurisdiction of the Boards to exclude those disputes in which the state was either a party, or where its interest were indirectly in issue, as when the dispute involved governmental social welfare programmes. Since the conservative government, unlike the socialist, had no commitment to the absorption of emergent social classes in judicial administration, the Boards were at best regarded as auxiliary mechanisms for the resolution of petty conflict. Even the government's faith in these Boards as efficient managers of minor disputes seemed shaky, as seen in the repeated appointment of party activitists whose effectiveness as conciliators would seem crippled by their political partisanship.