From donkeys to tarts, to drafting and drafts

BP Peiris

(Excerpted from Memoirs of a Cabinet Secretary)
(Continued from last week)

Mervyn’s first question on my reporting to him in response to his letter (offering a job in the Legal Dratsman’s Department) was, “Have I taught you at Royal?” Owing to an accumulation of work in his department, he had wanted a draftsman urgently and, as there was no time to call for applications, had gone to Attorney-General Ilangakoon and examined his file of applications for the post of Crown Counsel. He selected T. S. Fernando (at the time of writing, 1967, the Senior Puisne justice).

T. S. could not stand the drudgery and the painful silence of drafting for more than two weeks and asked to be relieved of his duties because he did not find the work congenial. I was then sent for. There was no money in the votes of the Legal Draftsman to pay my salary and I was gazetted as an acting Crown Counsel and paid from the votes of the Attorney-General.

Mervyn Fonseka believed that a classics man made a better draftsman than a mathematics man, a view with which R. B. Naish, a Civil Servant temporarily attached to the department for drafting a new Merchant Shipping Ordinance, and P. C. Villavarayan, a classical scholar from Oxford who was the Senior Assistant Draftsman, agreed. Naish was also a classics man – hence the selection of myself.

Naish was a serious man, intellectual, and very careful and correct in his drafting. Nihal Gunasekera, a charming and cultured man, who had been Crown Counsel and died early after he had reverted to the Bar, told me this story about Naish. There was a case in the Magistrate’s Court of Chilaw which, because of local feeling, the Magistrate was unwilling to hear and the Crown Proctor was unhappy about prosecuting. E. H. T. Gunasekera was asked to prosecute, Nihal was for the defence.

Counsel travelled by train. A white man got into the next compartment. All three got down at Chilaw and went to the rest house. At dinner, the white man sat at a table adjoining that occupied by the two advocates. Naturally, the conversation turned to a discussion of this peculiar silent, white man and in referring to him, the advocates who were speaking in Sinhala, used the would ‘Booruwa’, meaning ‘donkey’.

Next day, when the case was called in court, the ‘donkey’, who had been specially gazetted to try the case, came on the Bench. On the journey back after the day’s work, all three found themselves in the same compartment and E. H. T. tactfully veered the conversation to the subject of languages, Latin and Greek, Sanskrit and Pali, and finally, Sinhala and Tamil. The ‘donkey’ had said that he knew the classical languages and his Sinhala but found Tamil a little difficult. He had added “Some people might think I’m a donkey” and repeated it several times. The donkey was Naish.

Nihal told me of another incident which took place at the Kandy Assizes when he was Crown Counsel prosecuting before Chief Justice MacDonnell, a very polite man who bowed for the slightest thing from the Bench. The case was one of abduction and rape. The “complainant” in the case was the leading prostitute in the town, a woman in the roaring forties with all the hallmarks of her dwindling trade stamped on her person and her features – the enormous hairbun, the bangles on her wrists, the crow’s feet under her eyes, the sallow skin and the powdered face, a woman well known to every individual in the town except Chief Justice MacDonnell.

At the end of the tart’s evidence, the Chief gave a polite bow and said “Thank you, Madam”, which the Interpreter Mudliyar interpreted as “bahapiya”. A literal translation of this word will not convey the Mudaliyar’s meaning to English readers. Freely I would say ‘Get out’. Nihal had pointed out to the Mudaliyar that was not a correct translation of what the judge had said and the Mudaliyar had replied that he had a reputation to maintain in the town.

From donkeys and tarts let me get back to drafting and drafts. My father had often asked me, when I was at the Bar, to call on Mervyn in Chambers, and I had always refused. I preferred to stand on my merits and did not want them to feel that his old pupil, now advocate, was calling on his old teacher, now Head of a Department, to scrounge a favour. Naish told me later that I had been chosen because I had won the George Wille Greek Prose prize in school. I also learned later that the man who had been pressing my case, unasked, with Mervyn was E. H. T. Gunasekera, a fact which he always denied.

After I joined the Department, E. H. T. and I worked in adjoining rooms and we became good friends. I always went to him when I was in need of advice, and he always gave his advice straight from the shoulder, not shaping it to please the other party.

Mervyn was an excellent draftsman, a kind man, but a strict disciplinarian. He insisted on thoroughness and used to stress that a draftsman must know all the law and could not be heard to say that he had made a mistake. He had a fancy for clocks and watches. There were more than a dozen clocks in his house, one showing local time, one Greenwich, one Rome and so on. He also had one of the best collections of classical records, card indexed, and standing on shelves like books.

The Governor, Sir Andrew Caldecott, used to visit him to relax and listen to the records over a whisky and soda. On those days, there was always a policeman at the gate and no one was allowed to enter, neither Mervyn nor Sir Andrew being willing to be disturbed while listening to Mozart, Brahms, Beethoven, Chopin and other musical celebrities.

He used to have Saturday morning ‘classes’ for his staff officers. He would collect on paper, points that had struck him on our drafts and then we would discuss the several points of law rising on the drafts. These meetings were most helpful to his assistants and we learned a great deal from the discussions. The ‘classes’ were held at 9 a.m. On one occasion H. N. G. Fernando was about two minutes late. As H. N. G. entered the room Mervyn looked at the office clock and told H. N. G. that his watch was not keeping correct time.

H. N. G. was punctual after that. With his interest in clocks, watches, and gramophone records, Mervyn was sometimes a bit absent-minded. He always had a bottle of smelling salts on his table, and one day, absent-mindedly, instead of the bottle, put his fountain pen to his nostril, sniffed, and appeared to have received the same stimulation as if he had smelt the salts.

On October 1, 1936, I was appointed a temporary Assistant Legal Draftsman and made responsible for some of the subsidiary legislation of the island. This included Proclamations, Notices, By-laws of local authorities, Rules, Regulations and Orders – approximately 6,000 for the year. No file was supposed to pass out of the office until Mervyn had run his eyes over the outgoing letter and draft.

Very soon I was in trouble. Drafting is an art which is acquired by experience, and I had no experience at all. I was asked to draft a set of by-laws relating to the traffic lights installed, for the first time, at the Galle Road-Turret Road junction. I looked up the law. The Municipal Councils Ordinance, under which the by-laws were to be drafted, and prepared a set of by-laws using always the word “vehicle”, e.g., the green light means that the vehicle may proceed, the red light means that the vehicle shall stop, adding at the end, a by-law which said that where a vehicle is driven in contravention of the bylaws, the driver of the vehicle shall be guilty of an offence and liable to the prescribed penalty.

My draft passed through the office without Mervyn scrutinizing it. It was approved by the Minister and by the Governor and was, in due course, published in the Gazette and became law. The police then, for a period of about two months, began to instruct motorists in the new rules of traffic control by the use of light signals, after which they started instituting prosecutions.

One day Mervyn phoned me asking me to see him with the Traffic Lights By-laws file. This was unusual, and I knew that I had gone wrong somewhere. I have never, in my life, had such a grilling as I had from him that day. First, he asked me what I had read before I started drafting the by-laws. Did I read the whole of the Municipal Councils Ordinance? This dealt with streets, drainage, markets etc., and I told him that I did not consider it necessary to read the whole of the Ordinance.

After about half an hour of this grilling (I was almost going to call it ‘bullying’ in view of the fact that at some moments I was almost on the point of breaking into tears), he said “Turn to the Interpretation section. Did you read that?” I had not. In that same angry tone, he continued “Read the definition of vehicle”; and like a whipped school boy, I read. ‘Vehicle’ was defined to mean any vehicle other than a mechanically propelled vehicle.

“And,” he continued, after having had a sniff at his bottle of smelling salts, “are you aware of the rule of interpretation that where a word is defined in a statute and that word is used in a by-law made under that statute, then that word had the same meaning as defined in the statute?” Of course, I was not aware. “Well” he finally asked, “What is the effect of your by-laws?” I said I was sorry. I appeared to have caught up every type of vehicle except the motor vehicles. He now spoke in a lower key. To be sorry was one thing. To make him look a fool was an entirely different thing, and he did not want to be made to look a fool. Draftsmen cannot afford to make mistakes etc. etc.

“Lord,” I thought, “will this talking never come to an end?” Suddenly, he was all sweetness. “Don’t misunderstand me. We learn by making mistakes and I have been talking in the privacy of my room. We must put this matter to right.” He spoke in the plural. He phoned the Superintendent of Police dealing with traffic offences and found that there were over 100 cases pending. He told the Superintendent, “All these cases must be withdrawn. I have made a mistake in the drafting and in the circumstances, the Crown does not wish to go on with the prosecution.”

I quickly changed my opinion of the man and thought “What a fine gentleman!” The order for the withdrawal of all the cases had to be given by the Inspector General himself. My mistake (no one knew it was mine) was put right the following week by an amending by-law which said “In these bylaws, ‘Vehicle’ includes a mechanically propelled vehicle.” How simple the whole thing looks now. This happened many years ago. As I type this in 1967, in the privacy of my room, the atmosphere is

heated, my feet are cold and perspiration is pouring down my back.

I had, perforce, to be more careful now. I studied the Draftsman’s Bible, Allison Russell on Legislative Drafting, and if I had the slightest doubt, consulted one of my three seniors, Villavarayan, Wendt or H. N. G., who were always of the greatest assistance. A set of market by-laws for Kurunegala Urban Council was sent to me for revision. The Ordinance gave the Council power to lease the right to collect the rents and fees due in respect of the stalls. Instead of doing this, the Council had leased the entire market to one person and the bylaws were intended to provide for this.

I deleted all the objectionable portions of the draft and returned it to the Council certifying it to be in due form as amended in red ink. After some time, the draft was sent back to me by the Council with an opinion by E. J. Samarawickrema, K. C. stating that the original by-laws were perfectly in order and within the law and requesting that the by-laws as originally sent be certified to be in due form. I could not sit in judgement on my own matter. I accordingly wrote a nine page report to the Legal Draftsman pointing out, with all respect, that Samarawickrema was wrong and that the by-laws as amended by me should stand.

Mervyn sent for me and said, “So. You disagree with Samarawickrema? You had better pass the draft on the K. C.’s opinion.” I requested him to make that order on the file and he hesitated. He then had a conference with the Attorney General, the Solicitor, and five Crown Counsel, with himself, Villavarayan and me for our department and the meeting, after discussion, agreed with me.