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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