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Felix Dias’ draconian laws helped conspirators’ acquittal

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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



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Features

Glimmers of hope?

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The newly appointed Cabinet Ministers leaves Cass un-uplifted. She need not elaborate. She wishes fervently that Dr Harsha de Silva will leave party loyalty aside and consider the country. Usually, it’s asking politicians to cast aside self-interest, which very rarely is done in the political culture that came to be after the 1970s. Thus, it is very unusual, completely out of the ordinary to appeal to Dr Harsha to forego party loyalty and do the very needful for the country by accepting the still vacant post of Minister of Finance. We are very sorry Eran W too has kept himself away.

Some of Cassandra’s readers may ask whether she is out of her right mind to see glimmers of hope for the country. She assures them she is as sane as can be; she does cling onto these straws like the dying man does. How else exist? How else get through these dire times?

What are the straws she clings to? News items in The Island of Tuesday 24 May.

‘Sirisena leaves Paget Road mansion in accordance with SC interim injunction.’ And who was instrumental in righting this wrong? The CPA and its Executive Director Dr Pakiasothy Saravanamuttu. It is hoped that revisions to the system will come in such as giving luxury housing and other extravagant perks to ex-presidents and their widows. Sri Lanka has always lived far beyond its means in the golden handshakes to its ex- prezs and also perks given its MPs. At least luxury vehicles should not be given them. Pensions after five years in Parliament should be scrapped forthwith.

‘Letter of demand sent to IGP seeking legal action against DIG Nilantha Jayawardena.’ Here the mover is The Centre for Society and Religion and it is with regard to the Easter Sunday massacre which could have been prevented if DIG Jayawardena as Head of State Intelligence had taken necessary action once intelligence messages warned of attack on churches.

‘CIABOC to indict Johnston, Keheliya and Rohitha’. It is fervently hoped that this will not be another charge that blows away with the wind. They do not have their strongest supporter – Mahinda R to save them. We so fervently hope the two in power now will let things happened justly, according to the law of the land.

‘Foreign Secy Admiral Colombage replaced’. And by whom? A career diplomat who has every right and qualification for the post; namely Aruni Wijewardane. If this indicates a fading of the prominence given to retired armed forces personnel in public life and administration, it is an excellent sign. Admiral Colombage had tendered his resignation, noted Wednesday’s newspaper.

‘Crisis caused by decades of misuse public resources, corruption, kleptocracy – TISL’.

Everyone knew this, even the despicable thieves and kleptocrats. The glaring question is why no concerted effort was made to stop the thieving from a country drawn to bankruptcy by politicians and admin officers. There are many answers to that question. It was groups, mostly of the middle class who came out first in candle lit vigils and then at the Gotagogama Village. The aragalaya has to go down in history as the savior of our nation from a curse worse than war. The civil war was won against many odds. But trying to defeat deceit power-hunger and thieving was near impossible. These protestors stuck their necks out and managed to rid from power most of the Rajapaksa family. That was achievement enough.

Heartfelt hope of the many

The newly appointed Cabinet Ministers leaves Cass un-uplifted. She need not elaborate. She wishes fervently that Dr Harsha de Silva will leave party loyalty aside and consider the country. Usually, it’s asking politicians to cast aside self interest, which very rarely is done in the political culture that came to be after the 1970s. Thus, it is very unusual, completely out of the ordinary to appeal to Dr Harsha to forego party loyalty and do the very needful for the country by accepting the still vacant post of Minister of Finance. We are very sorry Eran W too has kept himself away. As Shamindra Ferdinando writes in the newspaper mentioned, “Well informed sources said that Premier Wickremesinghe was still making efforts to win over some more Opposition members. Sources speculated that vital finance portfolio remained vacant as the government still believed (hoped Cass says) Dr Harsha de Silva could somehow be convinced to accept that portfolio.”

Still utterly hopeless

Gas is still unavailable for people like Cass who cannot stand in queues, first to get a token and then a cylinder. Will life never return to no queues for bare essentials? A woman friend was in a petrol queue for a solid twelve hours – from 4 am to 4 pm. This is just one of million people all over the country in queues. Even a common pressure pill was not available in 20 mg per.

Cassandra considers a hope. We saw hundreds of Sri Lankans all across the globe peacefully protesting for departure of thieves from the government. The ex-PM, Mahinda Rajapaksa’s answer to this was to unleash absolute terror on all of the island. It seems to be that with Johnson a younger MP stood commandingly.

Returning from that horror thought to the protesters overseas, Cass wondered if each of them contributed one hundred dollars to their mother country, it would go a long way to soften the blows we are battered with. Of course, the absolute imperative is that of the money, not a cent goes into personal pockets. The donors must be assured it goes to safety. Is that still not possible: assuring that donations are used for the purpose they are sent for: to alleviate the situation of Sri Lankans? I suppose the memory of tsunami funds going into the Helping Hambantota Fund is still fresh in memory. So much for our beloved country.

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Ban on agrochemicals and fertilisers: Post-scenario analysis

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By Prof. Rohan Rajapakse

(Emeritus Professor of Agriculture Biology UNIVERSITY OF RUHUNA and Former Executive Director Sri Lanka Council of Agriculture Research Policy)

There are two aspects of the ban on agrochemicals. The first is the ban on chemical fertilisers, and the second is the ban on the use of pesticides. Several eminent scientists, Dr Parakrama Waidyanatha (formerly the Soil Scientist of RRI), Prof OA Ileperuma (Former Professor of Chemistry University of Peradeniya), Prof C. S. Weeraratne (former Professor of Agronomy University of Ruhuna), Prof D. M. de Costa University of Peradeniya, Prof. Buddhi Marambe (Professor in Weed Science University of Peradeniya) have effectively dealt with the repercussion of the ban on chemical fertilisers which appeared in The Island newspaper on recently.

The major points summarised by these authors are listed below.

FERTILISER ISSUE

1. These scientists, including the author, are of the view that the President’s decision to totally shift to organic agriculture from conventional could lead to widespread hunger and starvation in future, which has become a reality. Organic farming is a small phenomenon in global agriculture, comprising a mere 1.5% of total farmlands, of which 66% are pasture.

2. Conventional farming (CF) is blamed for environmental pollution; however, in organic farming, heavy metal pollution and the release of carbon dioxide and methane, two greenhouse gases from farmyard manure, are serious pollution issues with organic farming that have been identified.

3. On the other hand, the greatest benefit of organic fertilisers as against chemical fertilisers is the improvement of soil’s physical, chemical and biological properties by the former, which is important for sustained crop productivity. The best option is to use appropriate combinations of organic and chemical fertilisers, which can also provide exacting nutrient demands of crops and still is the best option!

4. Sri Lanka has achieved self-sufficiency in rice due to the efforts of the Research Officers of the Department of Agriculture, and all these efforts will be in vain if we abruptly ban the import of fertiliser. These varieties are bred primarily on their fertiliser response. While compost has some positive effects such as improving soil texture and providing some micronutrients, it cannot be used as a substitute for fertiliser needed by high yielding varieties of rice. Applying organic fertilisers alone will not help replenish the nutrients absorbed by a crop. Organic fertilisers have relatively small amounts of the nutrients that plants need. For example, compost has only 2% nitrogen (N), whereas urea has 46% N. Banning the import of inorganic fertilisers will be disastrous, as not applying adequate amounts of nutrients will cause yields to drop, making it essential to increase food imports. Sri Lankan farmers at present are at the mercy of five organizations, namely the Central Department of Agriculture, the Provincial Ministry of Agriculture, the Private sector Pesticide Companies, the Non-Government organizations and the leading farmers who are advising them. Instead, improved agricultural extension services to promote alternative non-chemical methods of pest control and especially the use of Integrated Pest Management.

Locally, pest control depends mostly on the use of synthetic pesticides; ready to use products that can be easily procured from local vendors are applied when and where required Abuse and misapplication of pesticides is a common phenomenon in Sri Lanka. Even though many farmers are aware of the detrimental aspects of pesticides they often use them due to economic gains

We will look at the post scenario of
what has happened

1. The importation of Chemical fertilisers and Pesticides was banned at the beginning of Maha season 1 on the advice of several organic manure (OM) promoters by the Ministry of agriculture.

2. The Ministry of Agriculture encouraged the farmers to use organic manure, and an island-wide programme of producing Organic manure were initiated. IT took some time for the government to realize that Sri Lanka does not have the capacity to produce such a massive amount of OM, running into 10 tons per hectare for 500000 hectares ear marked in ma ha season.

3. Hence the government approved the importation of OM from abroad, and a Company in China was given an initial contract to produce OM produced from Seaweed. However, the scientists from University of Peradeniya detected harmful microorganisms in this initial consignment, and the ship was forced to leave Sri Lankan waters at a cost of US dollar 6.7 million without unloading its poisonous cargo. No substitute fertiliser consignment was available.

4. A committee in the Ministry hastily recommended to import NANO RAJA an artificial compound from India to increase the yield by spraying on to leaves. Sri Lanka lost Rs 863 million as farmers threw all these Nano Raja bottles and can as it attracts dogs and wild boar.

Since there is no other option the Ministry promised to pay Rs 50000 per hectare for all the farmers who lost their livelihood. It is not known how much the country lost due to this illogical decision of banning fertilisers and pesticides.

Recommendations

1. Judicious use of pesticides is recommended.

2. The promotion and the use of integrated pest management techniques whenever possible

3. To minimize the usage of pesticides:

Pesticide traders would be permitted to sell pesticides only through specially trained Technical Assistants.

Issuing pesticides to the farmers for which they have to produce some kind of a written recommendation by a local authority.

Introduction of new mechanism to dispose or recycle empty pesticide and weedicide bottles in collaboration with the Environment Ministry.

Laboratory-testing of imported pesticides by the Registrar of Pesticides at the entry-point to ensure that banned chemicals were not brought into the country.

Implementation of trained core of people who can apply pesticides.

Education campaigns to train farmers, retailers, distributors, and public with the adverse effects of pesticides.

Maximum Residue Level (MRL) to reduce the consumer’s risk of exposure to unsafe levels.

Integrated pest Management and organic agriculture to be promoted.

1. To ensure the proper usage of agrochemicals by farmers

All those who advised the Minister of Agriculture and the President to shift to OM still wield authority in national food production effort. The genuine scientists who predicted the outcome are still harassed sacked from positions they held in MA and were labelled as private sector goons. The danger lies if the farmers decide not to cultivate in this Maha season due to non-availability of fertilisers and pesticides the result will be an imminent famine.

The country also should have a professional body like the Planning Commission of

India, with high calibre professionals in the Universities and the Departments and

There should be institutions and experts to advise the government on national policy matters.

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Thomians triumph in Sydney 

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Nothing is happening for us, at this end, other than queues, queues, and more queues! There’s very little to shout about were the sports and entertainment scenes are concerned. However, Down Under, the going seems good.

Sri Lankans, especially in Melbourne, Australia, have quite a lot of happenings to check out, and they all seem to be having a jolly good time!

Trevine Rodrigo,

who puts pen to paper to keep Sri Lankans informed of the events in Melbourne, was in Sydney, to taken in the scene at the Sri Lanka Schools Sevens Touch Rugby competition. And, this is Trevine’s report:

The weather Gods and S.Thomas aligned, in Sydney, to provide the unexpected at the Sri Lanka Schools Sevens Touch Rugby competition, graced by an appreciative crowd.

Inclement weather was forecast for the day, and a well drilled Dharmaraja College was expected to go back-to-back at this now emerging competition in Sydney’s Sri Lanka expatriate sporting calendar.

But the unforeseen was delivered, with sunny conditions throughout, and the Thomians provided the upset of the competition when they stunned the favourites, Dharmaraja, in the final, to grab the Peninsula Motor Group Trophy.

Still in its infancy, the Sevens Touch Competition, drawn on the lines of Rugby League rules, found new flair and more enthusiasm among its growing number of fans, through the injection of players from around Australia, opposed to the initial tournament which was restricted to mainly Sydneysiders.

A carnival like atmosphere prevailed throughout the day’s competition.

Ten teams pitted themselves in a round robin system, in two groups, and the top four sides then progressed to the semi-finals, on a knock out basis, to find the winner.

A food stall gave fans the opportunity to keep themselves fed and hydrated while the teams provided the thrills of a highly competitive and skilled tournament.

The rugby dished out was fiercely contested, with teams such as Trinity, Royal and St. Peter’s very much in the fray but failing to qualify after narrow losses on a day of unpredictability.

Issipathana and Wesley were the other semi-finalists with the Pathanians grabbing third place in the play-off before the final.

The final was a tense encounter between last year’s finalists Dharmaraja College and S.Thomas. Form suggested that the Rajans were on track for successive wins in as many attempts.  But the Thomians had other ideas.

The fluent Rajans, with deft handling skills and evasive running, looked the goods, but found the Thomian defence impregnable.  Things were tied until the final minutes when the Thomians sealed the result with an intercept try and hung on to claim the unthinkable.

It was perhaps the price for complacency on the Rajans part that cost them the game and a lesson that it is never over until the final whistle.

Peninsula Motor Group, headed by successful businessman Dilip Kumar, was the main sponsor of the event, providing playing gear to all the teams, and prize money to the winners and runners-up.

The plan for the future is to make this event more attractive and better structured, according to the organisers, headed by Deeptha Perera, whose vision was behind the success of this episode.

In a bid to increase interest, an over 40’s tournament, preceded the main event, and it was as interesting as the younger version.

Ceylon Touch Rugby, a mixed team from Melbourne, won the over 40 competition, beating Royal College in the final.

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