Features
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
Features
‘Lord Edgware Dies’
It has been some time since I read an Agatha Christie, the plot of which I cannot remember. So, I was delighted to find on the shelves of a friend Lord Edgware Dies, which I had a vague memory of, but no certainty about who had done it.
When I read it, I found that my memory of who was probably the killer was correct, but I could not be certain and the red herrings Christie threw in were so diverting that until almost the very end I wondered if I had been wrong.
The plot is very simple. Jane Wilkinson, who is married to Lord Edgware, tells him that she is desperate for a divorce since she is in love with a very proper Anglo-Catholic peer, Lord Melton, but Edgware refuses to divorce her. She asks Poirot to talk to him, which he does, and is surprised to find that Edgware has told Jane he is prepared to give her a divorce. This was, after he had categorically refused, through a letter, which Jane said she had not received.
That night Edgware is murdered, after Jane had been to see him, or so the butler said, and also Edgware’s secretary. But Jane had been that evening at a grand dinner many miles away, where a dozen fellow guests could swear to her presence.
There was a solution however to the mystery of two Jane Wilkinsons, namely a skilful impersonator called Carlotta Adams who, in the opening chapter had impersonated Jane Wilkinson, who had also been at the performance. But when Poirot goes to see her, he finds that she had been found dead on the morning after Edgware had been killed, of an overdose. And in her bag was a gold case, with a strange inscription, that contained the drug, along with a pair of pince-nez.
Her maid said she had written a letter to her sister in America and posted it the previous night. Poirot asks Inspector Japp to get the letter, and a transcript is received from America, and in it the name of Edgware’s nephew Ronald Marsh is mentioned; he had taken Carlotta to dinner after her performance, with which the book opens, and had then set her a challenge. Japp arrests Marsh, but Poirot is not happy and asks for the original of the letter, which the sister sends him. That shows that a page is missing, and the tear is obvious, though that raises the question as to why it had not simply been cut.
Matters are further complicated by the fact that Marsh had gone in a taxi to the Edgware house, along with Edgware’s daughter Geraldine, in the interval of an opera which had previously seemed to provide them with cast iron alibis. Geraldine had gone in to fetch her pearls so that Marsh could raise money he needed, and thus had an opportunity to kill Edgware, as did Marsh, for the driver said he had got out of the taxi while waiting and gone into the house.
Marsh explained why he had gone to the house on the night of the murder as having followed Bryan Martin, an American actor, who had been in love with Jane, whom he saw go into the house with a key. But there was no one visible when he entered, and Geraldine almost immediately came down and they left together. And Martin too has become an object of suspicion to Poirot, for he had been to see him before the murders were discovered with a story of being followed by a man with a gold tooth – a story Poirot immediately realized was false when he was asked how old the man was, and was told he was young, for young people did not have gold teeth.
A heap of French money Edgware had got for a trip to Paris was missing, but since Marsh had no need for it after his cousin’s offer of help, Poirot deduces that it must have been taken by the butler, who has disappeared. Christie has stressed that he is astonishingly handsome, unusual in a butler, and Poirot notes a resemblance to Martin, so he thinks the mysterious man going into the house must have been him.
Incidentally, later Poirot assumes that Edgware’s change of mind was because he was involved in some scandal, and I believe Christie intends us to see the cause of this in his handsome butler, though this is not specified.
Meanwhile, Poirot has asked Japp to find out the provenance of the case found in Carlotta’s handbag, and it turns out to have been made in Paris, specially commissioned, and collected by a woman with pince-nez.
But then another murder occurs—that of another guest at the grand dinner, which provided Jane with her alibi. The victim is an actor who had been bemused when Jane, at a lunch, thought the Judgment of Paris referred to the city. He told Hastings he wanted to see Poirot, but was killed before he could get to the appointment. Poirot had rushed there when told about his request, but it was too late.
Meanwhile, Poirot has tried out the pince-nez on Edgware’s secretary, but she could not see through these. It was only a chance remark heard outside the theatre that led him to try them out on Wilkinson’s maid Ellis, a spare pair that had been appropriated for the night of the murders.
Poirot then lays things out, having summoned Martin and told him that he probably suppressed Edgware’s letter, as he had been dropped by then and he did not want Jane to marry another. But after teasing Martin, Poirot says that Jane was in fact the murderer, and she got Carlotta to impersonate her at the dinner while she went to the house and killed her husband. After meeting Carlotta later and checking with her through a call that she had
not been rumbled, Jane had gone ahead with the murder – she put veronal into her drink and the case with veronal into the handbag. She forgot to take out the pince-nez she had used earlier to imitate an American. Carlotta had registered as the American in a hotel and Jane had gone to see her, and there they exchanged identities. After seen the letter, she made use of it by tearing off the page that referred to her, and the S of She, so that the person who had challenged Carlotta to impersonate her seemed to be a man.
There is a coda in which Jane, condemned to death, writes to Hastings, still full of pride at her ingenuity hoping she will be remembered.
Features
Desilt reservoirs, learn from our ancient irrigation systems
by Prof. O. A. Ileperuma
Silting of reservoirs is a major problem today affecting our hydropower production and irrigation systems. The main Mahaweli reservoirs are silted to a considerable extent reducing the water holding capacity of them. Due to poor soil management practices, floodwaters deposit large amounts of silt in these reservoirs. When the Polgolla reservoir was fully drained about two years back, one could see mountains of silt in the lower reaches of the reservoir. A rough estimate is that 50% of the total capacity of these reservoirs has been lost to siltation. This is a serious issue which affects not only power and agriculture but also flood control.
Our ancient irrigation systems ensured that desilting of reservoirs took place under royal decree where all users of the reservoirs were ordered to carry out desilting of reservoirs during the dry season. The clay thus collected was used in making bricks for the construction of great stupas which dot the landscape of our ancient kingdoms. This ensured that the reservoirs had their full capacity filled with water for the next cultivating season. Our ancient kings were clever enough not to construct reservoirs by blocking main rivers such as the Mahaweli. A classic example is the Minipe left canal where they tapped only the surface water of Mahaweli. Even the bigger tanks such as Nuwara Wewa and Parakrama Samudraya were fed with minor rivulets. There were also other ingenious features in the cascade irrigation systems built by the ancient kings, such as mud sluice canals and forest reservations between the reservoirs in the cascade system. These reservations helped trap silt and remove excess nutrients, which could otherwise contribute to increasing salinity as water flowed from one reservoir to another.
- Parakrama Samudraya
- Kalawewa
- Kotmale
A classic engineering marvel is the former Yoda Ela, which carries water from Kalawewa to Nuwara Wewa and Tissa Wewa. It is 87 km long although the straight distance between these points is only about 40 km. The gradient of this canal is about 10 cm per km or 6 inches per mile. Yodha Ela functions as a moving reservoir and feeds about 4,600 hectares of paddy lands. It is a winding canal with about 120 smaller reservoirs on its way. It was constructed during the reign of King Dhatusena around 459 AD and later expanded by King Parakramabahu by connecting more reservoirs to the network. Unfortunately, during the Mahaweli project our modern-day engineers constructed a concrete canal replacing the winding path of this Yoda Ela also called Jaya Ganga. This effectively removed the ability of the old Yoda Ela to remove silt and nutrients. The bank of this Ela has wet zone trees such as jak and areca nut growing well. They take up the nutrients from the flowing stream making the water suitable for irrigation later.
Ancient Mesopotamian civilisations depended on dams constructed along the two main rivers, Euphrates and Tigris. After continuous irrigation of their fields over several thousand years, salinity of the irrigated lands increased making them unsuitable for agriculture. People died due to famine and this clearly illustrates the danger of blocking main rivers for agriculture. There is scientific evidence that the salinity of paddy soils in the Mahaweli C area is increasing.
We saw the devastation caused by Cyclone Ditwah. The sluice gates of the Kotmale Reservoir were opened, and Kandy and Peradeniya were flooded. If the reservoir had had greater storage capacity, couldn’t the opening of the gates have been delayed? This may not be an argument that modern-day engineers would readily accept, and I am not an irrigation expert. These ideas may well be naïve. But most of us tend to think of reservoirs mainly in terms of hydropower generation and irrigation, while their role in flood control receives much less attention. The question therefore deserves serious consideration. Could restoring lost reservoir capacity through desilting help improve our ability to manage extreme rainfall and reduce flood risks?
Desilting our reservoirs should be considered a national priority.
Features
Losing out to Ethiopia
Export diversification – Missing the wood for the trees – Part III
by Gomi Senadhira
In Sri Lanka, the word “Ethiopia” is often used as disparaging slang to describe individuals or areas experiencing extreme poverty, starvation, or severe economic hardship. This linguistic habit originated in the 1980s with the Western media coverage of the devastating Ethiopian famine of 1983-85. That media coverage shocked the world but also left an outdated and offensive global stereotype that the country is permanently starving. Much has changed since then. By now, with an annual growth rate of around 9%, it is the fastest-growing economy in sub-Saharan Africa. Ethiopia has also emerged as a highly competitive exporter and is challenging not only its competitors in the region but also countries like Sri Lanka. This article is on how Sri Lanka has lost ground to Ethiopia (and a few other countries) in the GCC markets for agricultural and floricultural products.
Sri Lanka – A Pioneer in the Agriculture and Floricultural Market in the GCC
As discussed in Part II of this article, by the mid-1980s Sri Lanka had established a strong foothold in the GCC’s fruit, vegetable, and floricultural market. Geographical proximity and well-established shipping and air links gave Sri Lanka a strong comparative advantage over Southeast Asian and African nations. Thailand, Vietnam, and Kenya were not even in the market. At that time, Ethiopia was experiencing (as BBC news reports described) “a biblical famine”.
The market was not very large, but it was lucrative and growing. Trade Minister Lalith Athulathmudali as well as the Chairman of the Export Development Board, Victor Santiapillai, who visited Kuwait (and the GCC countries), recognised the market potential for these products and encouraged us to continue with our work. The minister was particularly keen to further develop links between the market for these products, exporters, and his Export Production Villages (EPVs). So, it was becoming a successful case not only for export diversification but also for transferring gains from exports directly to rural households.
From Trailblazer to Tailender
As a result, even by the beginning of this century Sri Lanka had a larger market share than most of its competitors from Asia or Africa. But since then, our competitiveness has weakened significantly. The tables below provide a comparative snapshot of Sri Lanka’s performance vis-à-vis Thailand, Vietnam, Kenya and Ethiopia in the GCC market for vegetables, fruits and floricultural products. As illustrated therein, in 2001 Sri Lanka was ahead of Thailand, Kenya and Ethiopia in this small but rapidly growing market. Since then, we have fallen behind Thailand, Kenya and many other countries in that lucrative market. If this trend continues, Sri Lanka will fall behind Ethiopia within the next few years. (See Table 1)
In the GCC market for vegetables (covered in HS chapter 07), Sri Lanka was ahead of most other competitors in 2001. As illustrated in Table 1 , Sri Lanka had failed to develop this market, while Thailand, Kenya, and even Ethiopia had very efficiently increased their market shares. The GCC is a market to which Sri Lanka can supply some vegetables, like cabbages, by sea. It appears Sri Lanka had also failed to exploit this mode of supply.
We can see a similar trend in the market for fruits. Vietnam, Kenya, and Thailand have emerged as major players, while exports from Sri Lanka have staggered on slowly. In this segment, Vietnam has emerged as a leading player during the last twenty years and the GCC imports from Viet Nam have shot up from US$44 thousand in 2001 to US$346 million by 2024. In part one of these articles, I discussed the remarkable increase of jackfruit exports from Vietnam “…just $3 million in 2015 to an impressive $236.8 million in 2023” while most of our jackfruit production rots under the trees. This explains how countries develop their markets, geographically and product-wise. (See Table 2)
Sri Lanka’s performance has been weakest in the market for floricultural products (HS Chapter 06), which groups live trees, cut flowers, and ornamental foliage. When we first entered the market in the 1980s, the market was dominated by the Netherlands, and Kenya and Ethiopia were not even in the market. At that time, we identified the Gulf states as a market where Sri Lanka could have a dominant presence due to geographical proximity. Even in 2001, Sri Lanka was ahead of Kenya, Ethiopia, and Thailand. But by now, Kenya has emerged as the dominant supplier. Ethiopia is also expanding its market share and is the third-largest exporter. (See Table 3)
Missing the Wood for the Trees
In the mid-1980s, Sri Lanka first established its foothold in the GCC market. Since then, Thailand, Vietnam, Kenya, and even Ethiopia have moved well ahead of us and have become leading players. Why did we lag behind in our export diversification efforts in general and, more particularly, in the GCC market?
The reasons are very clear. After the initial attempts in the 1980s and early 1990s, Sri Lanka has not been proactively involved in identifying, developing, and promoting new products and markets, or protecting and further developing new markets already established. The focus has simply been on traditional exports: tea, coconut, cinnamon, and garments, while other products were almost ignored. In essence, we have been and continue to focus intensely on a narrow group of products and markets, and we have lost sight of the bigger picture.
(The writer can be reached at senadhiragomi@gmail.com)
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