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Felix Dias’ draconian laws helped conspirators’ acquittal
60th Anniv. Of Coup ’62-Legal Aspects
by KKS PERERA
The UNP and the Tamil parties vehemently opposed the controversial The Criminal Law (Sp Provisions) Act, No.1 of 1962. The government was determined to bring the coup accused to book ‘by hook or by crook’. The bill was post-hoc and applied with retrospective effect. Trying the accused under the normal laws of the land would have created two problems for the authorities. Primarily, punishments laid out in the existing laws were insufficient to deal with a conspiracy to overthrow an elected regime. (This situation may not have been previously envisaged). Secondly, and more importantly, the evidence extracted from suspects during interrogation would not be available under oath in a court of law; and it would prove difficult to build up a case against them without the use of such confessions. The new law created new courts, new offenses and enhanced punishments.
It also purported to give legal effect [ex post facto] to the confinement for 60 days of any persons alleged to have committed an offense against the State. It broadened the class of offenses that the three judges chosen by the Minister of Justice for the examination without a jury and consent to arrest without a warrant, for waging war against the Queen. The new law stipulated minimum penalties for the offense; and for scheming to wage war against the Crown. Section 11 of the new Act provided that the AG might, before or at any stage during the trial, pardon any accomplice with a view to obtaining his evidence.
Section 12 amended the laws regarding evidence that no confession made by an accused in the custody of a police officer could be proved against him and that a confession by one of several co-defendants could not be used against the others, were changed. It allowed statements made in the custody of a police officer who was not below the rank of an Assistant Superintendent, to be used against any of the suspects charged. It laid on the accused, the burden of proving that a statement by him was not voluntary. It removed the effect of several sections of the Evidence Ordinance. Many vital and age-old protective rules of evidence were removed. The Act included a clause for removal of the right of appeal to any court in Ceylon (except to the Judicial Committee of the Privy Council in London), in Trials before three judges without a jury.
Criticism of the new Act-
Debating the bill in the House on February 23, 1962, the opposition members made highly critical speeches denouncing certain clauses:
J R Jayewardene-MP- ‘’Section 440 A of the Criminal Procedure Code in sub section (b) says this:
‘The governor may, by warrant under his hand, direct that the person charged shall be tried before the Supreme Court at Bar by three judges without a jury.’
Now this new Bill seeks to omit the words, ‘the person charged shall be tried’ and insert the words, ‘the trial of such offence shall be held’. We want to know what the reason is for that’’.
Dr N M Perera-
‘’What is the difference?’’
J R Jayewardene- “The amended section will read: ‘The Governor may under his hand direct that the trial of such offence shall be held…’ Why exclude certain words and why include certain words?’’
A Amirthalingam MP–FP
“We speak of a particular person being tried of an offence. But here we are told of the trial of the offence. This is absurd…it conveys no sense…in a piece of legislation, every word matters’’.
J R Jayewardene– “You can commence a trial-at-bar… without a single accused being present in court. There are sections which say the accused need not be present. You can commence a trial without a scrap of evidence being led in magistrate’s court. You can commence a trial, without any charge’’.
V A Kandiah- TC
‘’This is a very serious matter. It undermines the judiciary itself. It undermines and destroys all our respect for administration of justice’’.
–
HANSARD-Feb 23, 1962:col. 2511/2519
JRJ stated his party strongly resists any attempt to overthrow an elected regime by unlawful means or by force, they were similarly opposed to enactment of this type of Draconian legislation.
Legal action against suspects – misfortune continues:
The AG filed action against 24 suspects on June 23, 1962. Judges were nominated by the Minister of Justice to constitute the bench of Trial-at-Bar no. 2 of 1962, which commenced at a special court set up at Flag Staff Street, Navy Headquarters before Their Lordships, Mr Justice T S Fernando Q.C.[President], Mr. Justice L B de Silva and Mr Justice Sri Skanda Rajah.
GG Ponnambalam QC, raising a preliminary objections, stated: “the judicial power of a state is vested in the hierarchy of the judiciary. We must be careful to distinguish the judicial power of the state and the powers of the judge which is sometimes referred to as judicial powers.”
EG Wikremanayake QC, pleaded that the constitution of this court was contrary to law, with all the lawyers defending their clients following suit.
Ponnambalam continuing his submission, stated that the sovereignty of the legislature to enact Law was limited. Justice Fernando—”I think court has no power to deprive the legislature of its right to pass legislation. The court must exercise its powers very carefully.”
Ponnambalam said that the courts need not examine the motives and objects of these Acts but when any provision of an Act was questioned in court, the court should examine it. In Ceylon, the legislature’s powers are limited. Ceylon is not a sovereign legislature in that respect. However, on October 3, 1962, at the end of submissions, the judges declared that they have no jurisdiction to hear the case…, the Minister had acted ultra vires in making a direct appointment of the three judges. The government drafted a fresh Bill that allowed the Chief Justice to appoint the judges. The adversity, however, did not end there. The second court dissolved itself as well, citing an instance of one of the judges, Hon A W H Abeysundera, QC, who served as Attorney General having for a short period, been involved in the investigations.
The AG’s position was that, due to subsequent unanticipated developments, the plan to topple the government was called-off by the perpetrators.
The judgment stated:
“The evidence in support of an indictment charging conspiracy is generally circumstantial. It is not necessary to prove any direct concert or even any meeting of the conspirators; as the actual fact of conspiracy may be inferred from the collateral circumstances of the case…. Upon each of the isolated acts, a conjectural interpretation is put; and from the aggregate of these interpretations, an inference is drawn”.
—Queen Vs Liyanage; NLR-202
President of Trial-at-Bar, M C Sansoni J, delivering the judgment on April 5, 1965, stated, (excerpts from the judgment):
“In our order of 25th February 1963, we stated that ‘we share intense and almost universal aversion to ex post facto laws in the strict sense’. The third charge, that of conspiring to overthrow the government, was framed in terms of the retroactive amendment of section 115 of the Penal Code, made by the Criminal Law (Special) Act No I of 1962.
Eleven sentenced: 10 years RI and Confiscation of Property.
“They entered into an agreement with a common design. There may be one person round whom the rest revolve-or a chain of conspirators each communicating only with the one next to him.” see–R. v. Meyrick [121 Or. App. Rep. 94 at 1021.]”—-Queen vs Liyanage-, NLR-205
The court also held that:
“We have not forgotten that some of the prosecution witnesses, who are obviously accomplices, were giving evidence under a conditional pardon, ‘with halters round their necks’; and with a natural inducement to earn it. Is their evidence to be forthwith struck out or disregarded? ….”
Queen Vs Liyanage–NLR -213
The Trial-at-Bar bench quoted in their judgment, an extract as declared by Willes J. in Mulcahy v. The Queen [1 (1888) 3 H. L. 306 at 321.],: “As soon as he has subverted the Government, the rebel is out of danger” (unlike the murderer and the thief). As the penal law is impotent against a successful rebel, it is consequently necessary that it should be made strong and sharp against the first beginnings of rebellion; against treasonable designs which have been carried no further than plots and preparations,” it further said, “We convict 11 defendants on all the counts; and we impose on each of them, a sentence of ten years RI, the minimum prescribed by law, also forfeiture of properties …”
-M C Sansoni, President, Justices H N G Fernando, & LB de Silva.
Justice L B de Silva, whom the son of CC Dissanyake refers to as: “My father’s partner at bridge, was one of the three judges who conducted the trial at bar and convicted him.” –TDSA Disanayake.-‘Politics of S.L’-Vol III.
The Judicial Committee of Privy Council comprising Lord McDermott, Lord Pearson, Lord Morris, Lord Guest and Lord Pearce held:
“The Ceylon Government has no powers to pass the new law …., which is utlra vires, bad in law, and had denied a fair trial.” Lord Pearson delivering the verdict further stated: “This is an appeal against…Supreme Court of Ceylon…each of the 11 appellants was sentenced to…they were not tried by a Judge and jury…the trial was long and complicated…all the accused were in very rigorous custody…” Concluding the verdict they stated…, “…Although Criminal legislation which can be described as ad hominem and ex post facto, may not always amount to an interference with the functions of the judiciary….the convictions cannot stand. … these appeals should be allowed and the convictions should be quashed.”
Excerpts from writer’s Manuscript on 1962 Coup, titled, ‘Bloodshed ’62: Aborted or Abandoned?’—kksperera1@gmail.com
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
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