Comments About Mark Cooray And His Works (16/8/2013)

Chairman: Many thanks to Mark Cooray, and it is now my pleasure to call upon Mr. Edward St. John QC to comment on Mark Cooray's paper.

Mr. Edward St. John, QC: Mr. Chairman, Dr. Cooray, Ladies and Gentlemen: I have read the paper carefully and I commend it to everyone present. I certainly read it with very deep interest and I believe that is a very great contribution towards and understanding of the free society and the problems it faces, the way in which our basic freedoms may be maintained in a democratic society.

It is the work I believe of a man who has thought very deeply and has learnt some sad, hard truths .... I'd like to comment first of all on what I see as the important characteristics of the man and the paper, understanding the man through the paper as I do although I had met him briefly something like a few months ago. I would say the most outstanding characteristic of the man and his paper is his balance, his extremely well balanced view of the many interrelated elements which go to the proper functioning of a free society and its maintenance.

There are no absolute rights, something of which we must remind ourselves. A balance must be struck between competing groups. The judicial process is itself very largely a matter of striking that kind of balance between the competing rights, and competing groups.

Next I should like to comment on his obvious humanity, his understanding and his sensitivity. There is also realism which is learnt by close observation of what actually occurs in human society. He has faced up to the realities of human nature without losing faith in it, without losing faith in his own ideals of justice and freedom.

He is a man who looks widely over the world, obviously reads and draws the lessons that are to be drawn from the study of world events. And what comes through so clearly. I believe is something which no doubt has dawned on most of us that democracy is really extremely fragile and at risk, it's a tender plant, it can disappear almost overnight. I remember how struck I was with the history of recent (spoken in 1983) events in Burma when I visited there some years ago and the forms of democracy, perhaps the reality of democracy had literally disappeared overnight. One night there was a military coup and the next day there was a military dictatorship.

Perhaps it wouldn't happen so quickly in Australia but democracy is not nearly so durable of invulnerable as most of us in Australia, in the lucky country, would assume.

I was struck by Mark Coory's commonsense. I don't believe that he would rejoice if I were to say that his paper was brilliant, because I think it's something far better than that; brilliance he may have, but what I found so important was his simplicity and clarity of thought and the maturity of the wisdom, derived from experience and deep thought over a period of what, I presume a lifetime, but certainly 20 years or so since he achieved manhood. He sees clearly also the interrelationship between the political factors, the economic, the legal and the social. Those are what I see as the outstanding characteristics of this most illuminating paper, at least I found it so.

This excellent book is the result of long and detailed study. Anyone who reads the first few pages, or for that matter any page in any part of the book, will realize the depth of the author's knowledge of this branch of the law. It is the first and only comprehensive study of the law of trusts as it exists in Ceylon. No lawyer, therefore, should fail to keep a copy of it in his study....

Much of the book is, therefore, a candid criticism of the body of case law which has been built on bad foundations. It is all to the good that even at this late stage a thorough examination and appraisal of the local judgments should have been made. Nobody wants bad law to be perpetuated. It is tempting for lawyers and judges to follow the trend of decided cases, and when two or three judgments have decided a particular point in the same way the judges' powers of innovation or reformation tend to get cramped and confined.

Fresh thinking is always necessary to divert the stream of authority into a more correct and convincing direction. How necessary then is a text book such as this which points out where we have erred and strayed, and which in closely reasoned arguments suggests a different line of thinking in reasoned line of thinking in respect of many problems connected with trusts....

Dr. Cooray must be praised for his valuable critical analyses of most of the reported decisions of our courts. They disclose his thorough grasp of the subject.... Any lawyer who is called upon to argue a case which turns on a question of trust will find here an abundance of material to present a new approach to a question which might have been thought to be settled. It is time that there was spread abroad more knowledge of the usefulness of the trust and this book will certainly spread that knowledge.

It also narrows the gap between the practitioners and the academic lawyers. It should bring about, in the words of Erwin Grinswold, "a synthesis of theory and of learning for learnings' sake on the one hand, and of professional activity and responsibility on the other, which has long served to elude the grasp of thoughtful people. Dr. Cooray has, by publishing this book, fulfilled three functions of an academic research, teaching and writing. He will, I am sure, exert an entirely wholesome and beneficial influence on the development of the law of trust, and we shall all be much wiser after reading it.

"One......feels a special sense of gratitude for Dr. Cooray's clarity of exposition and the manner in which he handles the complications which beset the subject." .... the Reception in Ceylon of the Trust.... is sure to be welcomed warmly by the lawyers in Ceylon and abroad as it is a very complete study of the subject of Trusts, and there, and there has not been anything like it attempted in this island."

"The marks of scholarship and original thinking which characterize this work leave it in no doubt that it will receive a warm welcome in both professional and academic circles. I would like to congratulate you on your achievement which marks a significant advance in our study and understanding of the Law of Trusts in this country."

"....These are just a few of the intriguing constitutional problems dealt with by L. J. M. Cooray in his article on "Conventions in the Constitutional History of Ceylon in Vol 1, Number 1, of "Modern Ceylon Studies, A journal of the Social Sciences" which has just come off the press. The long awaited Journal, will, I am sure, exceed most people's expectations. In the past University publications were written by dons for dons. This charge cannot be leveled against the Journal of Social Sciences. Some of the titles of the articles may appear forbidding, or highly academic, but, in fact all are written in a manner that can be easily comprehended by anyone. Dr. Cooray's article which is given pride of place in the journal is a treat. In a 42 page article Dr. Cooray analyses all the tricky constitutional problems that have arisen in the formation of Governments in the post independence period. The other articles in the first issue of the journal, are by Gananath Obeysekere, P.T.M. Fernando, L. A. Wickramaratne, S. U. Kodikara, Michael Roberts, ?, W. S. De Silva. "Modern Ceylon Studies is the best journal produced so far by the University of Ceylon at Peradeniya.

It is intellectually stimulating when a fresh and enquiring mind takes a new look at the established interpretations of a nation's government. Dr. Cooray's purpose in the following pages is to question the well established concepts long used in explaining government in Australia. These are the concepts which have been seen to comprise the Westminster mode of government, and which, by inheritance, have become accepted as the means by which the government is practiced, observed and judged. As important as these concepts are, they are not specified, or even mentioned, in the written Constitution: and ironically, in our litigious society, this has added to their influence. The concepts in question — "Convention of the Constitution" "Responsible Government", "Reserve Powers of the Crown" are subjected here to a penetrating critique. One effect Dr. Cooray's book, if not its primary contribution, is its provision of new and useful insights into the constitutional significance of the dramatic events in Australian Government of 11th November, 1975. For this and for other reasons the book will be listed for reading in university schools of law and politics for many years to come. Students will find it provocative and will applaud its contribution, even if they disagree with it..... However, he has broken much new ground in Australian constitutional studies. For that reason the book is both important and refreshing. We are indebted to Dr. Cooray for it.

We shall hear much more of Dr. Cooray who is Associate Professor of Law at Macquarie University. It is of real importance, since he has only recently come here from Sri Lanka and is not yet well known, to stress that this is so far very easily the best book on the constitutional and legal background of the events of 1975 and implications these have for the analysis and reform of the Constitution. It is also a lucidly written discussion of topics..... With incredibly, some new ideas or at least marginal comments and "points"..... Chapters 1-2 are a thorough going critique of literalism in constitutional interpretation and an exposition of the reserve powers. These are well done with a skilful use of quotations. This leaves four chapters on responsible government, conventions, the constitution and 1975, the future of the constitution and constitutionalism which are a real tour de force. They are the least partisan accounts this scribe has seen; they show a fine mind operating lucidly and with an ability to make distinctions which for the most part seem of substance. Thus there is little or no "legal hairsplitting" here. Many of the differentiations are quite simple, yet very effective — as between political and constitutional conventions. The analysis of conventions is the highlight of the book and is partly original. It is misleading to summarise the author's conclusions — one will please Labor, the other Liberal supporters — one should rather stress the rational yet down to earth process by which he reaches them.

Comments by Professor Don Aitken, Professor of Politics, Australian National University and Macquarie University in the National Times week ending February 24th 1979.

For your bookshelf: A colleague waved his copy of Mark Cooray's Conventions, the Australian Constitution and the Future (Legal Books, Sydney) over his head and cried "This is what I've been waiting for! " Cooray is an academic lawyer who writes clean spare English. His subject is the part that conventions play in our constitutional system. And of course he takes us through the events of 1975 (the title of his fourth chapter). It is the clearest exposition yet of law underlying the constitutional crisis, and repays reading.

It was obviously written with the hope that it might be a standard text on an important subject- and there is every reason to think that it will be. Professor Cooray takes the Commonwealth Constitution and most of the fundamental conventions that have developed with it and subjects them to penetrating examination.... Its focus is the events of 1975, and his main theme is essentially the prospects of constitutionalism in the future. No book with such a focus or theme can please everyone, but the important questions that are raised by these problems are discussed here with an impartiality and with a sort of balance that we have in recent times been conditioned not to expect. The book is .... noteworthy for its many strengths. Its greatest value is its realistic and commonsense approach to such a comprehensive range of complex questions. After more than three years of cavalier misuse of such concepts as "constitutionalism" and "convention" it is refreshing to see them defined and discussed with this balance and precision.. The book will probably draw criticism from all political persuasions, but these days that is the mark of a pretty fair effort....

The scope of this book is ambitious and its brilliance makes it worthwhile coping with the less than easy to read type face. In just 172 pages Professor Cooray sets forth an explanation of why Australia has become, in just 200 years, the free, modem nation it is:

"Australia did not rise spontaneously from the dust.... Nor was it the creation of idle, empty men without purpose or hope or subtlety of thought."

He discusses the institutions and values that contributed to the building of the nation and which are considered important in the evolution of Western and Australian civilization, e.g. free elections, free speech, economic freedom, equality of opportunity (which he contrasts with equal opportunity), the rule of law, etc. Drawing on Milton Friedman, de Tocqueville, Hume, Madison, and other "greats", he quite breathtakingly sweeps the fields of political science, law, economics, ethics, to give a layman's view of western civilization and the achievements of the Australian nation.

This book is part of the Australian Achievement Project, organized by Mark Cooray under the sponsorship of the late Ben Lexcen who was patron of the project in 1988 on the values and institutions which have enabled us to settle an inhospitable continent and create a new nation. These include the family, religious beliefs, private enterprise, hard work, freedom of speech, the legal system and the Constitution The message is that we must learn from our achievements and the mistakes of our past so that we can creatively adapt to the challenges of the future. From this perspective he surveys, with some distaste, recent trends in education and family life, the declining, role of the churches in social life, the expanding role of central government, and shifting interpretations of the Constitution. He also examines issues such as the rule of law, freedom of speech, human rights and equal opportunity. He offers a refreshing variation on the usual "conservative" or "rightwing" themes. Where Santamaria mixes religious conservatism with dubious economics and the economic rationalists pay no attention to cultural or religious matters, Cooray attempts to do justice to both the spiritual and economic dimensions of our society's problems. He has also adopted Donald Horne's dictum that thorough social commentators should find something to say about everything from high culture to the soapies and football finals. People who are weary of cant and slogans from both sides of the political fence will find much to interest them in this book.

CONGRATULATIONS to L.J.M. Cooray and the Australian in publishing arguably the finest letter ever printed, Abandoned — Our Moral Duties (14/3) — CHARLES LAWSON, Burradoo, NSW.

Well expressed, L.J.M. Cooray (letters 14/3) Abandoned Our Moral Duties. Morality and genuine liberty. Resulting there from, have sunk into the mire of economics. —LILLIAN KINSKY, St Huberts Island, NSW.

L.J.M COORAY has put his finger on the basic cause of our society's ills. For those who through the timing of their birth know only our materialistic "me-first" society, it really once was different. —JOHN A. BAKER, Davidson, NSW.

Sydney Morning Herald, Thursday, March 30, 1989
IN PROFILE, Mark Cooray by Andrew West

Most academics win celebrity status through scientific breakthroughs or controversial histories. Mark Cooray's fame stems largely from his prodigious letter writing.

He has opinion, it seems, on everything from contraception to underarm bowling.

Newspaper editors who are short of copy can usually rely on the collected works of "L. J. M. Cooray, LLB (Cey), PhD (Col), PhD (Cantab), School of Law, Macquarie University" to fill those vacant column centimeters.

A recent sample received at The Northern Herald suggested that the

"fault with the Test wickets in the first four Tests is that there has been uneven bounce and inconsistent movements. The ball has sometimes held up and come slowly to the bat. This makes good batting impossible..."

"The political animal inside Professor Cooray has been markedly tamed since his youthful days in Sri Lanka, when he stood on street corners hawking radical newspapers. While a probationary member of a local Trotskyite party, he spoke against the official doctrine — and had his membership terminated.

"It was the only party I have ever been in... and I have absolutely no intention of entering Parliament. I want to preserve my independence"

Like many disillusioned by the politics of the extreme Left, Professor Cooray swung dramatically to conservatism, although he insists he is a radical in wanting to challenge the latest bogey of the New Right, the big business/ big government/ big unions axis..

At 50, Professor Cooray has been lecturing at Macquarie for 13 years. Students used to call him "The Scout Master" because of his stern, yet fatherly, concern for their welfare. Even some hardened Marxists who attended the law school have admitted he is a fair man who advocated diverse political thought without imposing his ideology...

As a child, Professor Cooray had but one ambition — to play Test cricket, he never envisaged a teaching career, entering academe only after an offer from his old university — and pressure from his mother.

Although raised in an atmosphere of colonial privilege, Mrs. Cooray instilled in her son the notion that wealth was unimportant. (His great-grandfather had been the richest man in Sri Lanka and his grandfather the Vice-President of the Legislative Council) — the highest position then available in government to a local in colonial Sri Lanka.

She urged him to leave his job with one of Sri Lanka's most profitable businesses and take up lecturing. It was a decision that eventually took him to academic posts in Britain, Europe and finally Australia.

"He was the best teacher I ever had and he was always the perfect gentleman."