Special laws tailored to convict 1962 coup suspects come a cropper

(Excerpted from Memoirs of a Cabinet Secretary by BP Peiris)

Sir Oliver, on relinquishing office, left Ceylon on a well-deserved holiday. The Hindu of March 2, 1962, carried the following editorial:

“The cryptic announcement from Colombo of the appointment of Mr Gopallawa as the Governor-General of Ceylon in succession to Sir Oliver Goonetilleke only serves to deepen the mystery surrounding the Island’s affairs for some time. Stringent Press censorship has made matters worse and it may be anybody’s guess what is happening and why. There has been no announcement so far that Sir Oliver, an elder statesman commanding considerable respect within the country and outside, had offered to resign.

“When his name was stated to have been mentioned by suspects interrogated in connection with the recent reported attempt at a coup d’etat, he had offered to be questioned. The Government spokesman who should have known the facts expressed disbelief in the suggestion that the Governor-General had anything to do with the attempted coup and apparently viewed with disfavour Opposition demands for his removal.

He had mentioned that the Queen had been informed by cable of the position. The Governor-General of Ceylon is appointed by Her Majesty, and, under the 1947 Order in Council, may exercise in the Island, during her Majesty’s pleasure, such powers, authorities and functions as are assigned to him. His appointment is also to be made on the advice of the Prime Minister of the Dominion.

“Are we to infer that a sufficiently strong case exists for the Ceylon Government to advise the Queen to order the removal from office of Sir Oliver and the appointment of a successor recommended by the Ceylon Prime Minister? Since other prominent names are also said to have been mentioned by suspects, notably Sir John Kotelawala and Mr Dudley Senanayake, former Prime Ministers, the drastic action in one case can only set speculation rife and add to the prevailing uncertainty in the Island.

“’From the assassination of Prime Minister Bandaranaike two years ago to the unprecedented removal from office of the Governor-General this week, it has been a crisis to crisis existence for the hard-pressed Island. The people can well see in the recent developments not only a threat to the stability of the Island’s administration, but to their democratic right to choose their Government and remove it.

If inflation, unemployment and a strike-wave had struck at their economic well-being, the attempted coup and the subsequent emergency Bill seeking to bypass judicial processes and the rule of law should be causes for even greater disquiet.

“It is no doubt the prime duty of the Government to unearth the conspiracy to overthrow the Government by force, if there had been such a one. But in the process, all care should be taken to preserve the spirit as well as the letter of democracy, and also steer the country clear of any kind of involvement in cold war politics. The suggestion of foreign inspiration for the coup has been here, but so many suggestions have been made in this context, some mostly tactical, that one would hope this too belongs to that category.

“And now, the Bill to deal with the coup suspects, which the Legal Draftsman was asked to prepare within two days, was presented in Parliament under the title of the Criminal Law (Special Provisions) Bill. It was severely criticized by all parties of the Opposition. Those in favour of the Bill argued that our former British masters did not foresee a situation where evil men would conspire to arrest the Prime Minister and other ministers and confine them in a dungeon, and that it was necessary to bring the law up to date. Against this, it was asked why it was proposed to change the law, to empower the Minister of Justice instead of the Chief Justice to nominate the Bench for the proposed Trial-at-Bar.”

One member of Parliament pleaded that, for the sake of the integrity of our courts of law, the normal process of the selection of the Bench should be left to the discretion of the Chief Justice. The Honourable member for Galle pointed out that you may not be able to stop an appeal to the Queen.

It was also pointed out in Parliament that what the Government was trying to do was to enact a new offence, relate it back to the time of the commission of the offence, and charge the offenders. One member commented “If this Bill gets into the Statute Book in the form in which it is presented, we would become the laughing stock of the World.

It is possible that this matter might be taken up by the United Nations or by the International Jurists or even by our constitutional experts.” On behalf of the Government, Finance Minister Felix Dias admitted that there were many things in the Bill of an unusual character. He appealed to the members not to oppose the Bill. The debate dragged on.

The General Council of Advocates in Ceylon passed the following resolution:

“The General Council of Advocates in Ceylon vehemently opposes the Criminal Law (Special Provisions) Bill in that

“(1) it removes the safeguards which are designed to ensure as far as possible a fair investigation and a fair trial;

“(2) it empowers the Minister of Justice to choose a Bench of Judges for a particular case; and

“(3) it deprives an accused person of the cherished and fundamental right of appeal.”

The Bill, after a long debate, was passed by both Houses and came on the Statute Book as the Criminal Law (Special Provisions) Act, No 1 of 1962.

The International Commission of Jurists in Geneva took notice of the new law. They expressed “profound concern” at legislation in Ceylon following the alleged attempted coup. Many of the provisions of this Law, they said, were entirely contrary to the generally accepted principles of the rule of law. The Commission asked permission for an observer to attend the trials, expected shortly, of those arrested in connection with the coup.

The Commission noted that investigations into the coup were being conducted by members of the Cabinet themselves with police approval. They added that, apart from the irregularity of this procedure, a specially passed emergency regulation prohibited the persons arrested from being visited by lawyers.

Sir Leslie Munro, Secretary-General of the Commission, commented on some features of the law which were open to criticism. These included the retrospective nature of the law, the provision that hearsay evidence may be taken into account and denial of the right of appeal.

I pointed out to the Cabinet that the validity of the Criminal Law (Special Provisions) Act was likely to be contested in court as the Act on Official Language from January 1, 1961 (the point was raised at the first trial). If the point succeeded, all the “culprits” would escape. And, if the point was upheld in one case, it would apply to all the other laws passed since January 1, 1961. The Cabinet thanked me for bringing the matter to their notice, left an agenda of 42 items aside, and discussed the problem.

Ministers said that they could not take a risk in this case and that, if there were any doubts as regards the correctness of the law, the doubts ought to be removed by fresh legislation. After, discussion, the Minister of Justice was told to a have Bill drafted immediately to clarify the position. The Bill was drafted, the Parliamentary Session was about to come to an end, and the Government hesitated to present the Bill because of its serious political implications.

The Bill validated all Acts passed in English and proposed to enact that “Notwithstanding anything in any other law, the English language may continue to be used for the purpose of drafting legislation to be enacted after the date of the commencement of this Act until such date as my be determined by the Cabinet of Ministers”.

The Opposition and the Tamil community would have been given a powerful weapon for attacking the Government. Why was the Bill restricted to the English language? Why not the Tamil language? Is the Official Language Act unenforceable, and if it is impracticable to enforce it, why not repeal it? And numerous other arguments with the only object of embarrassing the Government. The Prime Minister, a blunt and outspoken woman said “This is what happens when we try to go too fast”.

Felix Dias said that he had consulted the Attorney-General Jansze who had advised “Let lying dogs sleep” meaning, do not introduce the Bill. Some of the Ministers attacked the bona fides of the Attorney-General in giving that opinion. They thought that the Attorney-General was trying to leave a loophole to allow the coup suspects to escape. One Minister attacked his honesty as being anti-Government.

I have known Jansze for several years. He was an honest, upright and God-fearing man, an honest and honourable lawyer who did not hesitate to give his opinion on a matter of law and did not care whether that opinion suited the party asking it or not. In view of the Attorney-General’s opinion, the Government decided not to proceed with the Bill.

Under the new Act, No. 1 of 1962, the Minister of Justice, named the Judges for the Trial-at-Bar of the coup suspects – T. S. Fernando, L. B. de Silva and Sri Skanda Rajah. Charges were served on the accused and the preliminary steps taken to hold the trial.

At the trial, Attorney-General Jansze led for the Crown with Solicitor-General Tennekoon and several Crown Counsel. For the defence, there appeared G. G. Ponnambalam, E. G. Wikramanayake, H. W. Jayewardene, A. H. C. de Silva, all Queen’s Counsel, supported by an array of juniors. It was rumoured that defence counsel were appearing pro deo. Objection was taken to the jurisdiction of the court on the ground that it was wrongly constituted and the objection was upheld. The Judges proved, if proof were at all necessary, that the Supreme Court is not and never had been, a stooge of the Executive. In upholding the objection, the court said:

“For reasons which we have endeavoured to indicate above, we are of opinion that because:

(a) the power of nomination conferred on the Minister is an interference with the exercise by the Judges of the Supreme Court of the strict judicial power of the State vested in them by virtue of their appointment in terms of section 52 of the Ceylon (Constitution) Order in Council, 1946, or in derogation thereof, and

“(b) the power of nomination is one which has hitherto been invariably exercised by the Judicature as being part of the exercise of the judicial power of the State, and cannot be reposed in anyone outside the Judicature,

“Section 9 of the Criminal Law (Special Provisions) Act, No. 1 of 1962, is ultra vires the Constitution.”

The wheel of fortune had done one complete circle and the Government was just where it was at the beginning. What was the next step to be?