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

At about this time, one Premadasa (later President R. Premadasa), a UNP member of the Colombo Municipal Council, whom I did not know and whom I had not met or seen, made a speech in one of our public parks where he stated that, within five minutes of the conclusion of Sirimavo’s Cabinet meetings, the UNP had a full account of the discussions and the decisions reached at the meeting, but went on to add that they did not get their information from Cabinet officials.

I thoughts it was extremely kind of the gentlemen to pay me and my staff this unsolicited compliment. The next day the Times of Ceylon carried the speech on its front page, including the compliment paid to us. A few days later, a friend asked me whether I had read the attack on me in the Tribune, a paper to which I did not subscribe and did not read. He lent me his copy. The line that the Tribune took was that both Premadasa and the Times of Ceylon were wrong in their information, that Cabinet secrets leaked to the UNP through the top official (myself) in the Cabinet office, who “haunted the pub on the fringe of Colombo 1” – a reference to the Automobile Association of Ceylon of which I was an Honorary Life Member and a member of the Bar and Entertainments Committee – and that it was at this pub that the leaks took place.

The writer went on to add that, if the leaks were to be stopped, the top official should be removed. I was not going to take this insult lying down. A few minutes before the next Cabinet meeting, I told the Prime Minister the gist of the article and that I would not be attending the meeting if she had no confidence in me. I said I would resign. She said “Don’t be silly, Mr Peiris”. I told her that I was not placing on her the burden of coming to a decision and obtained her permission to raise the matter of confidence before the entire Cabinet.

When the Cabinet met, she informed the Ministers that I had a personal matter to raise, and when I finished reading the article aloud and said that I was prepared to go immediately to Queen’s House with my resignation, the following conversation took place between Felix Dias and myself:

F. D. Mr Peiris, why do you assume that the article refers to you?

B. P. Sir, I am the top official of the Cabinet Office, and the reference to the pub on the fringe of Colombo 1 is to the Automobile Association of which I am a member and which I visit fairly frequently.

F. D. Mr Peiris, don’t believe everything you read in the newspapers these days. I speak for the entire Cabinet when I say that we have absolute confidence in your integrity and loyalty.

B. P. Sir, I thank you for that. The matter may therefore be regarded as closed. And so, I continued as an officer of the Cabinet.

Towards the end of 1961, there was a whisper of a series of strikes planned for the new year with a view to paralyzing the Government. Strikes in the public and private sector took place on January 5, 1962. Valuable equipment at Radio Ceylon was damaged and army technicians were put on the job of restoring the radio and transmissions. The strike spread to the Port of Colombo, the Transport Board and the commercial banks, and the Cabinet was meeting almost daily to review the situation to prevent it spreading, particularly to the plantations. The Governor-General, a former Civil Defence Commissioner, was again given complete control of operations.

In the midst of its other problems, the Government had to meet a new situation. In the late Prime Minister’s assassination case, the trial judge had convicted one accused of murder and two others of conspiracy to murder, and had sentenced all three accused to death. On appeal, the Court of Criminal Appeal, on an interpretation of the law, converted the sentence on the charge of conspiracy, from death to one of life imprisonment. The Government was annoyed. It decided that the law should be clearly stated with retrospective effect, namely, that the penalty for conspiracy to murder should be, not life imprisonment, but death.

The Capital Punishment (Special Provisions) Bill was accordingly drafted by the Legal Draftsman under vehement protest and presented in the House of Representatives. It was expected that all three readings would be moved in one day and the item was placed at the top of the Order Paper. A week later this dropped to the bottom because all the accused appealed to the Privy Council. The Crown did the same. Both applications were for special leave to appeal and leave was refused in both cases. The matter became stale and, I believe, the Bill was allowed to lapse.

Another amazing proposal came before the Cabinet in February 1962.1 referred earlier to the continuance in force of certain emergency regulations to enable the detention of certain persons suspected of being connected with a coup to overthrow the Government. It was in the previous month, January, that the proposed coup had failed because someone, at the last moment, got the jitters and spilt the beans. At midnight, a Deputy Inspector-General of Police was arrested. In the succeeding days, other arrests of top ranking officers of the Army, Navy, Police, Civil Service and a few civilians followed. The total number arrested was twenty-nine.

How were they to be tried and what was the punishment to be meted out to them? In some countries today I suppose they would have been shot without trial. But here, Sirimavo had assured the people that she was following the policies of her late husband and that her government was democratic with an admixture of socialism. The Government decided to make drastic and unusual changes in the law.

I have never seen a man more unhappy than Percy de Silva, the Legal Draftsman, who was at this time, preparing, with angry curses under his breath, draft after draft, as fresh instructions, not always consistent one with another, reached him daily from the Government.

Here is a summary of the changes in the law which the Legal Draftsman was directed to put into proper legal form. Instead of a trial by jury, there should be a Trial-at-Bar, that is, a trial before three Judges of the Supreme Court sitting without a jury. There should be no preliminary magisterial inquiry and proceedings should be initiated in the Supreme Court. A Bench is normally appointed by the Chief Justice but, in this case, that power should be vested in the Minister of Justice. The penalty for the offence might be a sentence of death. Bail should be refused unless authorized by the Attorney-General. Confessions made to police officers should be made admissible in evidence.

The trial against any of the accused persons could be commenced and continued in his absence. The judgment of the Court should be declared to be final, and the right of the accused, if convicted, to appeal to the Court of Criminal Appeal should be taken away. The right of the subject to appeal to Her Majesty would also have been taken away if the Government only had the power. And, when everything was over and the accused had been convicted (or acquitted) these new changes in the law should cease to have any effect and the old law should automatically revive.

This atrocious piece of draft legislation shook the lawyers both in Hultsdorp and the outstations who still had respect for the sanctity of the law and for fair play and justice. After these proposals had been discussed by the Cabinet and finally approved, the Legal Draftsman was given two days time to prepare the complicated piece of legislation.

Wild rumours were gathering momentum involving the Governor-General Sir Oliver Goonetilleke, Dudley Senanayake, Sir John and anyone else on whom the scandalmongers desired to use the tar brush. At the Cabinet meeting just referred to, the Prime Minister asked me whether the Governor-General had inquired from me whether he had the power to dissolve Parliament without her advice. How this got out I do not know. I can only assume that the conversation that the Governor-General had with me on the telephone had been tapped. And that was not the first time he had discussed matters constitutional with me.

I told the Prime Minister that that was not what the Governor-General had asked me. He had asked me to look up my books and let him know whether he had the constitutional power to dismiss his Prime Minister and his entire Cabinet and I had advised him that he had such power but would have to find, without going to a general election, an alternative government which would take responsibility for his decision to dismiss. The Prime Minister asked me how long ago that was and I said it was about three months. She asked me what his reason could be for asking me the question.

I told her that when the Governor-General asked me a question, it was not open to me to ask him another, that he had put constitutional questions to me before, and that it was probably because he thought that I knew my subject. In a ruminative mood at home, it struck me that, some months before, W. Dahanayake, M. P. had made a public speech to the effect that the country was going to the dogs because of mismanagement by the Government and that it was time that the Governor-General sacked the whole bunch and formed a National Government. On inquiry from the newspapers, I was told that this speech was published in the Times of Ceylon of October 2, 1961, and I told the Prime Minister so; it did not appear to me have any connection with the coup.

On February 13, Felix Dias, Minister of Finance, made what he called a factual statement on the coup d’etat, He stated that the whole purpose of the coup was undoubtedly to overthrow the Government on the night of January 27. The statement continued: “The Government takes a very serious view of the abortive coup d’ etat. It is a comforting thought that most of the regular units of the army were unaffected by the spirit of disloyalty that manifested itself among certain officers who have been involved. In the Police too, it is fortunate that a large number of loyal officers remain who are capable of giving valuable service to the Government at this critical time. It is particularly satisfactory that the majority of the rank and file, both in the army and in the police remain completely loyal to the Government and the country.”

He added that the opportunity must not however be lost to effect complete and radical reforms in the Police Service, in the Armed Services and indeed in the public service. Many Army officers and Police officers who had participated in the coup had bitterly regretted their action and one army officer committed suicide in consequence of his participation. It was essential that deterrent punishment of a severe character should be imposed upon all those who were guilty of this attempt to inflict violence and bloodshed on innocent people throughout the country for pursuit of reactionary aims and objectives. The investigations would therefore proceed to their logical end. The Government was determined to do its duty by the people.

In view of this factual statement and the floating rumours, Sir Oliver voluntarily submitted himself to interrogation, but the Police did not dare to question Her Majesty’s representative. My own humble opinion at the time was that the step he took was most unbecoming of the office he held and the respect due to him. Efforts were now made to remove him from office. It was said that the Queen’s permission had been sought to question the Governor-General on the part he was alleged to have taken in the coup, and that a reply had been received that such a procedure would be unusual and unconventional. The next move was to have the Governor-General removed from office.

Here, the Queen had to act on the advice of Her Prime Minister of Ceylon and the Prime Minister advised removal. At very short notice, Sir Oliver’s successor was announced from the Palace – Mr William Gopallawa, M.B.E., our Ambassador in Washington. Whatever Sir Oliver’s other faults may have been, there was no doubt that he carried his office with great dignity during his long term of nearly eight years as the Queen’s representative in the land. After a long and unique record of distinguished service to his country in many capacities, he took his final bow and left Queen’s House on March 1, 1962.

The new Governor-General was sworn in the next day. His Excellency announced that he would give up the trappings of office, that is, the official uniform, the helmet and plumes, the sword and medals, and that he would wear a plain cloth and banian.

It was said that the Queen’s permission was again sought to question Sir Oliver after he ceased to be Governor-General and that the Government had received a reply from a constitutional sovereign that she was unable to intervene in a matter between the Government of Ceylon and a private citizen but that she hoped that no steps would be taken which would bring dishonour on the high office of Governor-General in view of possible repercussions in other parts of Her Commonwealth. The Government ordered that Queen’s House staff should be questioned first and that Sir John Kotelawala, Mr Dudley Senanayake, Mr J. R. Jayewardene, Mr Philip Gunawardena and Dr N. M. Perera be also questioned.

I was then asked whether I had any objection to making a statement to the police regarding Sir Oliver’s question to me about his constitutional powers in the dismissal of a cabinet. I said I had none and my statement was recorded on February 28,1962. I was placed in the most embarrassing position because the Prime Minister told me that my statement to the Police had been shown to Sir Oliver, who then had made a statement somewhat as follows:

I have known Peiris from the days when I was Civil Defence Commissioner and he was an Assistant Legal Draftsman. He is a straight and honest man of unquestioned integrity. If Peiris says that I spoke to him on the telephone and asked him this question, I will accept his statement as true. But the fact is that I did not speak to Peiris. It is quite likely that someone else put the question to him imitating my voice.

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.

The long and heated debate in the Ceylon House of Representatives a fortnight ago has been the only source of information from which any inference could be drawn about the attempted coup and its possible ramifications. And sections of the Opposition did not waste this opportunity to make political points of “right” and “left”. With censorship clamped down, and the prolonged emergency, the people of Ceylon are perhaps the most mystified by the extraordinary developments in the country.

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 remember 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

one 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 forty-two 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. Wickramanayake, 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.