Excerpted from A Cabinet Secretary’s Memoirs by BP Peiris

The next incident I can remember is a matter of a two-line by-law sent by Davidson, Assistant Government Agent, Matara, which said “The part of the… D.R.C. road lying between the first and the second mile posts is hereby prohibited for lorry traffic over three tons in weight.” I amended the draft to read “No lorry weighing over three tons shall be driven over that portion of the… District Road Committee road which lies between the first and the second mile post on that road.” Davidson took offence at my correcting his draft and inquired why his draft had been amended.

I argued with Mervyn that “that portion” was better than the “part” and that generally my draft was better than Davidson’s. Mervyn agreed with me and wrote accordingly to Davidson. Soon afterwards, a four-paged letter was received from Davidson, citing Fowler’s Modern English Usage, and asking for a full report on the reasons for the amendments. Mervyn was angry. He wrote back to say that his assistant who revised the by-law was far too busy with drafting and had no time to be writing reports on the reasons for the amendments, and that he was not prepared to give a full report or any report other than the report he had already given stating that the draft was in due form as amended in red ink.

He added, that if Davidson would call by appointment at the Chambers of his assistant, the reasons would be orally explained to him. He also added, “You must not be so sensitive as to feel that when your draft is amended in this office, it is a reflection on your capacity to write good English.” Davidson never came to see me.

In 1936, three years after I joined the Public Service, came the Second World War with the necessary influx of allied troops and troop ships and all the evils always associated with war. There was rationing and a shortage of essential commodities, hoarding and black-marketing, rapid money-making by some, the downfall of others as a result of the appointment of the Custodian of Enemy Property, the return of pensioned prostitutes, the WRENS, WAAFS and their male counterparts, the blackout, uncertainty, tension…

It was all there for anyone who wished to see. The ordinary man’s feeling was that the order of the day was, as Charlie Chaplin said in his film “The Dictator”, Tightenden belten! A Commander-in-Chief assumed office, and the Governor became responsible only for the Civil Administration.

It was, as the newspapers said, a phoney war, but our Commander-in-Chief, Admiral Geoffrey Layton was getting the country prepared. Emergency Regulations, drafted by Mervyn and Villavarayan were being turned out of the Government Press faster than ham came sliced out of a machine. Then, one day, Ceylon woke up. On Easter Sunday, the Japanese air-arm dropped some bombs over the Fort of Colombo.

A few days later, they dropped a couple of bombs over Trincomalee. The damage was slight, but the people panicked. Most of those who could afford it left for the hills with their children. Those who could not, parked with friends out of the danger zone.

There was a British Volunteer Brigade stationed at Panadura. The Brigade was a mixed crowd consisting of surveyors, engine drivers, carpenters, London taxi drivers etc. The Officer Commanding, Major… was a King’s Counsel and a snob. There were also a Captain and Lieutenant, both decent men. I once invited the Captain, his junior officer and twenty men (I did not invite the snob) to my house for drinks and a singsong from six to nine p.m. They arrived sharp on time, marching in formation.

Following them came a military van with an enormous crate of N.A.A.F.I. beer. It was the first time that they had been invited by a householder in the town. I had a little gin and whisky and plenty of arrack. Everyone, including the officers, preferred the arrack, and the beer was untouched. With a shortage of servants, my guests had to help themselves, and I laid the drinks out in my small study which could accommodate comfortably only about six at a time. I accompanied each group in until they knew the ropes.

One of them, who looked a typical London taxi driver, saw a picture on my study wall and exclaimed, “Blimey! That’s Lincoln’s Inn.” I inquired whether he was a member of the Inn, and he said, “Lord, no Governor, I’m a taxi driver and know the place well.”

There was good singing and tap-dancing with hobnailed boots on my polished floor. The Captain looked worried and asked me whether his men were not spoiling my floor. I suggested that the boys be allowed to enjoy themselves. At a quarter to nine, the captain gave the order, “Last three songs.” When I inquired why he was bringing my party, which everybody was enjoying, to a sudden end, he said, “Your orders, Sir”.

I asked them to continue for another half-hour. At 9. 30 sharp, there were salutes from the men, handshakes from the two officers, and they were gone after one of the finest evenings I have had. They left for me the unused crate of beer. I remembered a Defence Regulation which penalized the possession, by private persons, of stores intended for the fighting forces.

Early the next morning, there were two of the men on my doorstep saluting me and saying “Good morning, Sir. Captain’s orders, Sir. Sent us to clean and polish your floor, Sir.” My wife gave them a cup of tea instead.

In view of the necessity to tightenden belten in all respects, Governor Caldecott made an order prescribing a new dress for public servants—long trousers and shirt without a tie, or shorts and shirt; no coat need be worn. I avidly seized this opportunity of being able to come to work in the sensible dress and be comfortable during my daily journey by train from Panadura to Colombo and back. The day after the Governor’s order was given publicity in the press, I came to work in khaki shorts and an open shirt.

The lawyers were particular about their striped trouser and black coats and Hultsdorp was surprised to see me in the new attire. A few days later, Mervyn sent for me. When he saw me, there was a look of horror in his face. It was obvious that he did not approve of the dress prescribed by the Governor in a case where the public servant concerned was a lawyer. He mentioned the matter to Sir Robert Drayton, Legal Secretary, who had expressed the view, which Mervyn conveyed to me, that shorts were the last thing a lawyer ought to be seen in while at work. As the Legal Secretary could not countermand the Governor’s order, I continued to wear shorts for the duration of the war and, I am sure, incurred Drayton’s displeasure.

Drayton had been Legal Draftsman of Palestine and, soon after he assumed duties as Legal Secretary of Ceylon, Mervyn took all his assistants with him to listen to a talk by Drayton on legislative drafting. The talk was interesting and instructive. Sir Robert, who was a heavy smoker, passed his enormous cigarette case round the table. Smoking before a superior officer, if one was a smoker, was the normal practice in Hultsdorp. The Civil Servants never did it. For example, a Class 11 man never smoked in the presence of a Class I officer, and a Class I Officer would not have dared to smoke in the presence of the Chief Secretary.

This struck me forcibly during a conference at the Secretariat in wartime. Drayton, who was in the Colonial Legal Service had been transferred as Chief Secretary, a rather unusual appointment for a lawyer and a draftsman, and had been succeeded by Nihill. The Conference was about the territorial waters of Ceylon and was attended by Nihill and myself, top army, navy and air force officers and top civil servants. Drayton presided. Sir Robert had, at that time, given up smoking as he had some trouble in his throat. Nihill was a smoker but never appeared to have his own cigarettes.

After some time, I asked Drayton whether I had his permission to smoke, permission which was readily granted with apologies that he was sorry that he had none to offer. I lit up and Nihill promptly borrowed one from me and continued to do so during the conference. Not one Civil Servant smoked while he Chief Secretary was in the Chair. As we left the conference room one of the Civil Servants offered me a cigarette and lit one himself.

C. L. Wickremesinghe, then Land Commissioner and a Class I Civil Servant came one day to see Mervyn Fonseka over some draft legislation. Mervyn asked Harry Wendt, an Assistant, to come with the relevant file and Harry came with the file and his tin of cigarettes and, during the ensuing discussion, kept puffing away as he was a heavy smoker. It was a shock to the senior Civil Servant to learn that in Hultsdorp, an assistant was permitted to smoke in the presence of his Head, nay, that he indulged in this practice almost as a matter of right.

On another occasion when Percy de Silva, another assistant, was sent for when another very senior Civil Servant was present, he came with his cigarettes and matches, his pipe and his tin of tobacco and placed them all on the boss’s table. The news soon spread in Civil Service circles, of the utter indiscipline and disrespect for seniority prevailing in Hultsdorp.

In 1924, with the appointment of E. G. P. Jayatilleka to the Bench, the post of Attorney-General fell vacant. Governor Caldecott offered the vacancy to Mervyn. At this time, M. W. H. de Silva, a good friend of Mervyn’s and the older of the two, was Solicitor-General. M. W. H. told Mervyn that if he accepted, he would be appointed, and would thereby, by reason of age and precedence, shut M.W.H. out of future promotions. He requested Mervyn to stand down, which he did.

He informed the Governor that he was willing to accept the post of Solicitor-General under M. W. H. as Attorney – General Mervyn showed me the letter written to him by Caldecott in his own hand informing him that he would be appointed Solicitor-General (“under protest” underlined three times and followed by three exclamation marks). I am not aware of any other case in the public service where one man has stood down for another, on grounds of age and friendship, in the matter of appointment to such high office.

Mervyn was accordingly appointed Solicitor-General and took silk. He had been admitted as an advocate in 1928 and, five years later, was appointed Legal Draftsman. His knowledge of the law and devotion to duty were so greatly appreciated that he was appointed to act as Legal Secretary when Drayton moved over as Chief Secretary. He died in 1946 at the early age of forty-nine.

His Excellency the Governor made the following minute:

“His Excellency the Governor desires to place on record his deep regret at the death of Mr J. Mervyn Fonseka, OBE., K.C., Solicitor-General. Mr Fonseka’s services under the Ceylon Government extended over a period of 19 years and was characterized by able and conscientious devotion to duty. At the time of his death, he held the highly important office of Solicitor-General in the Island of Ceylon and had performed the duties of that office with marked ability. His death is deplored by his colleagues and by his numerous friends throughout the Island.”

In the Supreme Court, tributes were paid to him. Basnayake, the Attorney-General, addressing the Judges, said that Mr Fonseka’s early death had removed from their ranks an outstanding personality and created a void which could not be filled. Like many distinguished members of the Bar, Mr Fonseka had shown great promise both in his academic and professional studies. There was no prize which was worthy, no distinction which was coveted, that he did not win for himself. The profession of teaching attracted him first, but that was only for a time till he qualified for the Bar with its glittering rewards.

Early in his professional career, he entered the service of the Crown. His rise was rapid. He successfully held the offices of Crown. Counsel, Assistant to the Attorney-General, Assistant Legal Draftsman, Legal Draftsman, Acting Legal Secretary, Solicitor-General and Acting Attorney-General. Had death not intervened, and so suddenly and so early removed him, he would undoubtedly have attained the highest judicial office in the Island.

The Attorney-General continued: Mr Fonseka had a lofty sense of duty and intense loyalty. His burning zeal for work was the despair of his colleagues who strained every nerve at times to keep pace with him. In the field of drafting, he excelled. The care with which draft legislation was prepared, the precision and perfection of his work, were known to every legislator since the reforms. He organized and reared a new department, the destinies of which he guided for eight years.

Those eight years were the busiest and most strenuous of the 24 of his professional life. He had made a worthy and lasting contribution to legislative drafting in this Island. Not only had he improved the standard and style of Ceylon enactments but he had also trained a band of brilliant young men in the technique of legislative drafting. His work in that sphere would remain a monument to him more permanent than marble or bronze.

In the period of the war, he toiled night and day to meet the imperious demands for urgently needed legislation. Although His Majesty did not fail to recognize his work, the stress of labours made itself felt and, since 1943, each succeeding year indicated that he had over-strained his constitution. Mr Fonseka’s outside interests had a wide and varied range. Music, literature, the classics, radio, chronometers were but a few. His love for music was great and his home became the Mecca of music-lovers. Mervyn Fonseka is no more, but the high ideals which he cherished and practised will serve as an inspiration for generations to come.

Sir John Howard, Chief Justice replied: Mr Fonseka’s record of achievements spoke for itself. He had a wide and extensive knowledge of every branch and every system of law. In the application of that knowledge, he did not adopt any ultra legalistic pedantry, but brought to bear a common sense point of view. Apart from Mr Fonseka’s legal knowledge, he was a brilliant scholar and a very well-read man.

It was sad to reflect at a time like this, when Ceylon was about to embark on a new order, that by Mervyn’s death, she would be deprived of one of her most brilliant sons at an early age and one so well fitted to guide her future destinies.

At a time like this, when Mervyn has passed to the other side, I prefer myself to dwell not so much on his record of achievements but on Mervyn as a colleague and a friend. For several years I was associated with him when I was Legal Draftsman. During that time, I incurred a debt of gratitude which can never be paid. He was a most loyal and devoted colleague. I think myself, that if he had devoted a little less time to his work, if he had been a less devoted public servant and given more care to his physical health, it is possible that he would have been with us today and going on from height to height till he reached that pinnacle to which the legal people can rise in Ceylon.

All his Assistants loved him and we carried the coffin to his grave. It would be impertinence on my part to add to what the Attorney-General and the Chief Justice said. Suffice it to say that if I have been efficient as a public servant, my efficiency has been due to the very thorough training I received under Choksy and Mervyn. He will always be in my memory.