Notes

Author's Note: The main part of this article was originally written to be presented to Harvard Law School for a Doctor's Degree.

1 The then Attorney General C. Nagalingam, cited in Ceylon Law Recorder, 1946: XIV.

2 Mr. de Silva's address was delivered on 15 January 1946, during a period of acute political activity and intense national consciousness culminating in the promulgation of a new Constitution a few months later.

3 This pronouncement, made almost a decade before he assumed office, provides us with an early indication of de Silva's dedication to the reform of the judicial process.

4 Interviews with S. Canagarayar, the then Assistant Secretary in the Ministry of Justice and G.C.T.A. de Silva, the then Permanent Secretary, on file with the author.

5 Interview with S. Canagarayar, ibid. A bill on the suspension of the death penalty was defeated in the Senate, although it had been passed by the House. See Parliamentarian, 1956: 673.

6 A public proposal submitted at a meeting in Yakkala dated 12 July 1956, on file with the Ministry of Justice.

7 Ministry files indicate that a copy of the West Bengal Panchayat Act was made available by the Indian High Commission at the request of the Minister.

8 Memorandum by the Minister of Justice on the establishment of Conciliation Boards dated 26 November 1957, on file with the Ministry of Justice.

9 The explanatory clause appended to the Draft Bill on Conciliation Boards.

10 For Ceylon, see Tiruchelvam, 1973: Ch.3; and for West Bengal, cf. Malaviya, 1956: 340–341.

11 The West Bengal Act in addition renders the awards and sanctions imposed by the Nyaya Panchayats as enforceable as court decrees. See Sections 78 and 107. Similar provisions were inserted into the Conciliation Boards Bill in Ceylon by an Amendment passed in 1963.

12 Cf. the discussion on the merits and demerits of the nominative and elective schemes in the Report of the Study Team on Nyaya Panchayayts, 1962: 47–54.

13 See Section 70 of the West Bengal Panchayat Act.

14 See Section 3 (3) and (5) of the Conciliation Boards Act.

15 See Section 13 of the Conciliation Boards Act.

16 See Section 93 of the West Bengal Panchayat Act.

17 See Section 80 of the West Bengal Panchayat Act.

18 See Section 6 of the Conciliation Boards Act.

19 See Section 100 of the West Bengal Panchayat Act.

20 See generally the debates on the Conciliation Boards Bill, the Proceedings of the Senate (1957–58), Hansard, 1957: 1157–1158 and the Proceedings of the House of Representatives (1957–58), Hansard, 1957: 1640–1682.

21 See the Honorable P. B. G. Kalugalla in the Proceedings of the Representatives (1957–58), Hansard, 1958: 2897–2899.

22 Compare the comments of British Administrators on the attitude of the Ceylonese villager towards the inherited court structure. See Aelian King, District Judge of Badulla, Administrative Report,1869: 188; R. Morris, Government Agent Kurunagala, ibid.: 120.

23 Information obtained from Ministry files on the implementation of the Conciliation Boards Act.

24 Interview with S. Canagarayar, see Note 4, and interviews with T. G. Siriwardene, formerly Administrative Secretary of the Conciliation Boards Unit, on file with the author.

25 The Minister of Justice at that stage was Sam P. C. Fernando.

26 The Committee was composed of P. P. Siriwardena (Chairman, Aluthgama Village Area), Senator A. D. Jayasekera (Chairman, Kanuwanna Village Area), Mohandiram D. Alagiyawanna (Chairman, Megodapotha Village Area), and D. Wimalaratne (Asst. Secretary to the Ministry of Justice).

27 This analysis of the Committee's recommendations is based on the notes of a meeting on the Conciliation Boards, 11 March 1961, on file with the Ministry of Justice.

28 See Proposals on the Reforms of the Conciliation Boards Act formulated at a meeting of the Ministerial Committee on 27 August 1960, on file with the Ministry of Justice.

29 It was also felt that since the scheme was voluntary (the Boards derived their authority to bring about settlements from the consent of the parties), to compel a witness to testify under oath would not be in accord with the spirit of this legislation.

30 Senator A. D. Jayasekera at the meeting on 11 March 1961, see Note 27.

31 The article entitled “Do not entrust the herd of cattle to the tiger”, The Lankadipa, January, 1958.

32 During the Senate Debates on the 1963 Amendments one of the Senators read excerpts from a letter by a party who had several complaints filed against him for abuse by a person of a different political party. This defendant had been ordered to appear before the tribunal on four different occasions; and on each one of these occasions the Chairman rejected his repeated plea to have the case remitted to a Magistrates Court, and even threatened the recalcitrant party that “he is all powerful,” Senate Debates, 1963: column 1914.

33 In 1965 there were 128 Conciliation panels functioning, while in 1970 the number of panels had increased to 324. See Table 1 in Goonesekere & Metzger, 1971: 96.

34 See interview with D. J. R. Gunewardene, the then Permanent Secretary to the Ministry of Justice, The Lankadipa, November 5, 1966.

35 Interview with T. Gilbert Siriwardena, the then Administrative Secretary to the Ministry of Justice, ibid. It appears that there is no statutory authority vested in the Ministry to curtail the civil jurisdiction of these Boards.

36 See Memorandum by the Ceylon Law Society dated 24 June 1965, on file with the Ministry of Justice.

37 A frequently repeated suggestion in these memoranda is that the Chairman of Conciliation Boards should be a lawyer.

38 See Draft Report of the Law Commission on the Conciliation Boards Act, on file with the Ministry of Justice.

39 See the judgement of District Judge J. G. Swaris in E. Coates & Co. Ltd. v. A. F. Jones & Co. Ltd., The Times of Ceylon, 10 September 1966.

40 For the Supreme Court decision in E. Coates & Co. Ltd. v. A. F. Jones & Co.

41 See Samarasinghe v. Samarsinhe, N. L. R. 71 (1969): 151 and Broheir v. Saheed, N. L. R. 70(1968): 276.

42 Wijeyawardene v. Inspector of Police, Panadura, N. L. R. 70(1968): 281.

43 See N. L. R. 71(1970): 217. For the dissenting judgement of Justice A. C. Alles, see ibid.: 223. The effect of Nonahamy's case was to some extent mitigated by Fernando v. Fernando, C. L. W. 80(1971): 14, where the court implied that unless the objection to the jurisdiction of the court was taken at the trial stage of the proceedings the parties would be taken to have acquiesced in the jurisdictional defect.

44 See the speech of Colvin R. de Silva, at the Debate on the Appropriations Bill, 1967–68, Hansard, 1968–69: 1187. He alleged that in one of the Conciliation Boards in Agalawatte the Chairman was removed by the Minister and the entire Board reconstituted for patently political reasons.

45 Colvin R. de Silva, see Note 44, read out a letter to this effect, issued by the Ministry of Justice to a member of the Government's Parliamentary Group but which inadvertently reached a member of the opposition.

46 Senate Proceedings as reported in Lankadipa, 14 March 1969.

47 K. P. Ratnam, M.P. for Kayts, the Debate on the Appropriations Bill, 1967–68: 28–39. Cf. Wood, 1961: 68; cf. the revivalists’ position in the legislative debates on the Conciliation Boards Bill, supra pp. 205.

48 The newspapers used by these groups included The Sun (an English daily), The Dawasa (a Sinhalese daily) and The Rivirasa (a Sinhala weekly).

49 See The Dawasa, 11 January 1969 and 27 December 1969.

50 The Rivirasa, 10 January 1969.

51 Statement issued by L. H. R. Pieris to the Rivirasa, 17 January 1969.

52 This represents the third and the most radical of socialist governments in Ceylon since independence. The first is Bandaranayake's government of 1956 to which we referred earlier in the text. Contemporary historians have varied in their evaluation of the socialist orientation of the Bandaranayake government policies and on the impact of the political programme which it instituted. One scholar believes that the 1956 general elections brought about a social revolution, by which the hitherto dominant western-educated urban elite were dethroned by a more traditionalistic rural petite-bourgeoisie. See Singer, 1964. While others do not perceive a fundamental difference in either the social origins or the policies of Bandaranayake's Freedom Party or the right wing United National Party, they accordingly characterize the Bandaranayake political programme as a mix of clerical and communal chauvinism and feigned reformism and anti-imperialism. See Halliday, 1971.

Among the more important changes initiated by this government were the nationalization of the port authority and all private omnibus companies, and the enactment of Agrarian Reform legislation which provided security of tenure to tenant cultivators of paddy lands. The enactment of legislation making Sinhala the official language of the country precipitated communal tensions culminating in racial riots which rocked the island in 1958.

A series of strikes and other demonstrations, and trade union action by the urban working class in 1956, led to the enactment of the Public Security Act regarded by some as “the most savagely repressive law in the whole arsenal of Ceylonese bourgeoise legislation.” For a more extensive account of this period, see Wriggins, 1960.

S. W. R. D. Bandaranayake's assassination by a Buddhist monk in 1959 and the ensuing political confusion led to the second phase of socialist rule in Ceylon under the vanguardship of his widow Srimavo Bandaranayake.

This period was relatively uneventful and no major programmes of radical change were attempted. Of the more controversial legislation enacted during this regime was one passed in 1961 to nationalize the assets of the Anglo-American oil companies. The urban working class, however, during 1962 and 1963 became increasingly restive and militant and closed its ranks against the government to agitate in favour of a series of economic and political demands known as the “common programme”. This led to successful overtures being made by the government towards the Trotskyite and Communist parties, with the latter joining the Government Parliamentary Group in 1964. See Farmer, 1965: 189.

Charges of nepotism, corruption and economic mismanagement contributed towards the defeat of the socialist coalition in 1965 and the return to power of the right-wing United National Party for a further period of five years. With exercise of emergency powers during most of these years, a fragile right-wing government was barely able to tide over a period of intense economic and political restiveness. Nationwide dissatisfaction over the cut-back in welfare measures led to an overwhelming rejection of the U.N.P. at the general elections of 1970.

The third phase of socialism was thus commenced on a tide of popular euphoria over the electoral victory of the socialist coalition. Although the new government undertook to institute a wide range of social reforms, including the state control of the export-import trade and the “Ceylonization” of all businesses, and promised to alleviate the economic hardships suffered by the less affluent segments of the populace, a deteriorating balance of trade situation and a generally sluggish economy accelerated the impoverishment of these social groups. The most enthusiastic backers of the government soon became its most virulent critics. The attack against the government was spearheaded by a clandestine group of left-wing intellectuals who had over several years established intimate contact with segments of the non-plantation rural peasantry. It initially took the form of an ideological assault on what was perceived to be the fake socialist policies of the government and its fidelity to the parliamentary system set up by “imperialists”. It soon took the shape of violent armed insurrection which broke out in April 1971 and which was suppressed by the government with military assistance from an unusual alliance of nations from both the West and East, and including the United States of America and the Soviet Union. For two distinct perspectives on the Ceylon Insurgency, see Halliday, 1971 and 1972: 258.

53 The policy statements we shall examine include the Election Manifesto (1970); the Throne Speech, 1970, 1971; the Budget Speech, 1970–71, 1971–72; and the Directive Principles in the Constitution of Sri Lanka (1972), Section 16. Although the ideology of the socialist regime finds its most coherent expression in these statements, we should bear in mind the continuity between some of these ideas and those that were developed during the earlier phases of socialist rule in Ceylon.

54 We should also bear in mind that the socialist ideology is interlaced with several neo-traditionalistic ideas on linguistic and religious revivalism. These ideas find their strongest expression in the Constitutional provisions which decree Sinhala as the official language of the state, and which enjoin the state to protect and foster Buddhism. These policies have clearly had a divisive effect on the nation by alienating its ethnic and religious minorities and have been characterized by many as being anti-socialist and even “reactionary”. See Halliday, 1971; cf. Farmer, 1965: 189, 192. Apologists of the coalition would, however, refute this by arguing that Buddhist-Sinhalese, being the religio-ethnic group which suffered the greatest disabilities under several centuries of foreign domination, deserved preferential treatment in the post-independent social order. For a review of doctrinal arguments on the compatibility of Theravada Buddhism and Marxism, see Smith, 1973.

55 The socialist coalition has been repeatedly critical of the terms of the loan arrangements and the “letters of intent” contracted by the U.N.P. with the International Monetary Fund, and has dubbed these arrangements as a “sell out of the national interests... to imperialism and neo-colonialism"; see Election Manifesto: 172–173 and Budget Speech, 1970–71: 6–11.

56 N. M. Perera, the Minister of Finance, further added “that aid arrangements must be consistent with our self-respect, our independence and our sovereignty”, Budget Speech, 1970–71: 13.

N. M. Perera, the Trotskyist Minister of Finance, pointed out in his first budget speech that the programme of the socialist coalition was founded upon the thesis that no developing country could leave “development at the mercy of interplay of forces which are motivated solely by the profit instinct” (ibid.: 3). He added that while this doctrine recognized a role for the private sector in the development of the economy, it required the commanding heights of the economy to be firmly under the control of the public sector.

57 In furtherance of the general policy of state interventionism in the economy the government promised to nationalize the banking system, the import-export trade and control and direct the plantation industries through state agencies, and to regulate Agency Houses. See Election Manifesto: 174–175.

58 See Section 16 (2) (e) of the Principles of State Policy, the Constitution of Sri Lanka (1972).

59 See Section 16 (5), ibid.

60 N. M. Perera in his first budget speech pointed out that one of the basic commitments of the government was to establish the foundations for a socialist economy “while preserving the democratic traditions to which we as a people have pledged ourselves”, Budget Speech, 1970–71: 4–5; cf. also Election Manifesto: 181 wherein it is provided that “all laws and regulations which restrict the democratic rights of the people will be repealed or amended”; cf. Sections 72 and 75 of the Constitution of Sri Lanka (1972) which guarantee that elections to the National Assembly would be free and secret and ensure the continued operation of those laws which protect the orderly conduct of the elections.

61 See Section 16 (5) of the Principles of State Policy, the Constitution of Sri Lanka (1972); cf. Election Manifesto: 173.

62 See the budget speech of N. M. Perera (1970–71: 4).

63 In 1970 N. M. Perera emphasized that the government was embarking on the unique task of attempting a socialist transformation through the ballot (ibid.: 40). This question assumed much more than an academic significance when the J.V.P. (People's Liberation Front), believing that socialism can only be realized through violent revolution aimed at dismantling the existing political-legal framework, set in operation an insurrection which almost toppled the government. In reviewing the havoc caused by the insurgency to the already ailing economy N. M. Perera reiterated his conviction that there could be no short-cut to socialism in a traditional society. He added that those who desired “an instant revolution had succeeded in pushing back revolutionary changes for a considerable time"; see Budget Speech, 1971–72; Parliamentary Debates, 1971: 171. To buttress this argument he reviewed the circumstances which led the Soviets even after a violent overthrow of the feudal and capitalist overlords to institute a New Economic Programme which retained the involvement of private enterprise in small and middle-scale industries and trade.

64 The Election Manifesto states that the United Left Front seeks to “develop all branches of the economy at a rapid rate and according to a National Economic Plan....” (p. 175). See also Section 16 (2)(c) of the Principles of State Policy, the Constitution of Sri Lanka (1972); Budget Speech, 1970–71: 5.

65 The United Left Front promised that its “program for the rapid industrialization of Ceylon, the extension of irrigation and power resources, the reorganization of the rural economy and the development of fishing would provide employment on a wide scale in both towns and villages”; see Election Manifesto: 177. Subequent policy statements also underscore the urgency of the problems of unemployment and describe some of the immediate steps which the government proposed to take towards both a short-term and a long-term solution to the problem. See Budget Speech,1970–71: 5, 28–29; Section 16 (2) (b) of the Directive Principle of State Policy, the Constitution of Sri Lanka (1972).

66 In Budget Speech, 1970–71, Minister Perera pointed out that one of the more basic policies of the government was its commitment to “those social welfare measures which are an integral part of the nation's social fabric” (p. 5).

67 The leader of the opposition in a bipartisan expression of support to the government for its actions against the insurgency of April 1971, reiterated in Parliament, “We do not approve of the use of violent means to replace a government lawfully elected by the people.... We must all co-operate to preserve the democratic way of life. That alone is the way of peace and progress. There is no other way.” See Parliamentarian, 1971: 216.

68 See Section 18 (1), the Constitution of Sri Lanka (1972) which provides that “all persons are equal before the law and are entitled to equal protection of the law.”

69 See Section 18 (1) (b), the Constitution of Sri Lanka (1972).

70 On the colonial period, see Tiruchelvam, 1971; Mendis, 1956, I: Introduction; and C. R. de Silva, 1941–42.

71 Cf. for a general treatment of some of these questions, Friedman, 1971; for a historical account of the expanding economic role of the state in post-independent Ceylon, see Oliver, 1957: 50ff.

72 For the government's commitment to social welfare schemes, see Budget Speech, 1970–71: 5; increasing outlays on the subsidizing of food, medical, educational and transportation expenses inevitably made such serious inroads into the surplus available for development that the government was most reluctantly compelled to cut back on some of these measures; see Budget Speech, 1971–72; ibid.: 246, 255–259. For an example of social-welfare legislation, see the Food Control Act, No. 25 of 1950, and regulations framed thereunder which set up an elaborate mechanism for the distribution of subsidized food rations.

73 The Land Reform Act imposed a ceiling of fifty acres on the ownership of all forms of land except that belonging to public companies. See Budget Speech, 1971–72; 258, where the Minister of Finance describing the proposed legislation predicted that it would bring about an agrarian revolution in the country.

74 For an account of the several steps that the government proposed to take against what was described as “urban landlordism”, see Budget Speech, 1971–72: 259; also the Rent Restriction Act of 1972.

75 See Budget Speech, 1971–72: 249, 261. This measure was justified on the basis that it was “socially desirable that all salary scales whether in the public or private sector should bear some reasonable relationship to the general patterns of individual earnings.”

76 See the Industrial Products Acts, No. 18 of 1949; the Imports and Exports Controls Act, No. 9 of 1955; and the Exchange Act, No. 24 of 1953.

77 See the Compulsory Savings Act, No. 6 of 1971; Department of Inland Revenue Booklet on Compulsory Savings Levy (1971); Budget Speech, 1970–71: 249–250; and the Bank Debits Tax Act, No. 27 of 1970.

78 See the Control of Prices Act, No. 29 of 1950. The Minister of Finance promised in 1970 that a comprehensive price-control system would be evolved to combat the cost of living. See Budget Speech,1970–71: 39.

79 See, on public corporations, Amerasinghe, 1972.

80 The government established several State Trading Corporations with a view to regulating the import and export trade and to conferring on the state a monopoly over the importation, exportation and distribution of several commodities such as textiles, subsidiary foodstuffs, tea and coconut products. See the Sri Lanka State Trading Corporations Act, No. 33 of 1970; and Budget Speech,1971–72: 207.

81 To further the state policy of managing all “heavy basic and essential industries” the government decided to set up several industrial development corporations to facilitate the developmental planning and the co-ordination of the production programmes of different sectors of the economy. See Budget Speech, 1970–71: 35–36.

See also the Business Undertakings (Acquisition) Act, No. 35 of 1971 which enables the government to gain control of the business operations of “recalcitrant employers and anti-social businessmen [who attempt] to frustrate the application and execution of government programs”. Parliamentarian, 1971: 134.

82 Although the Trotskyites for almost two decades advocated the nationalization of the plantation sector, once they assumed power, they opted for a more cautious policy of “purposeful intervention”, according to which the government through the issue of directives, tax incentives and subsidies, attempts to protect and improve prices paid by importers, to ensure the efficient management of estates and generally to stimulate investment in the plantation industries. See Budget Speech 1970–71: 204; also the Tea Control Act, No. 28 of 1949; and the Rubber Control Act, No. 29 of 1949.

83 For an account of the circumstances under which the Supreme Court would (in exercise of the supervisory jurisdiction conferred on it by the Courts Ordinance) review executive action, see Cooray, 1968: 105ff. Justice H. N. G. Fernando in Anthony Naide v. the Ceylon Tea Plantation Co. Ltd. (N.L.R. 68 (1966): 558) implied that the legislature could not by ordinary legislation take away the court's power to review administrative actions through the issue of the prerogative writs recognized in Sections 42 and 45 of the Courts Ordinance.

84 See Cooray, 1968: 99–102. See also the judgement of District Courts in Mudanayke v. Sivagnnanasunderam (N.L.R. 53(1952): 25).

85 See the comments on the judiciary during the legislative debates on the Interpretation Ordinance (Amendment) Act of 1971; see Parliamentarian, 1972: 238–240; 1971: 134.

86 See the Court of Appeals Act, No. 44 of 1971.

87 See the Ceylon (Constitution and Independence) Amendment Act, No. 36 of 1971; also Jayaratne, 1972: 104.

88 This is clearly seen in the constitution of the first National State Assembly which was composed of all members of the former House of Representatives. See Section 42 (1), the Constitution of Sri Lanka (1972). In addition, the members of the National State Assembly continue to be designated as “Members of Parliament” (Section 29), enjoy the same powers, privileges and immunities as those of the House (Section 38), and continue to regulate the proceedings of the Assembly in accordance with the Standing Orders of the House of Representatives (Section 37).

89 See Sections 48 (2) and 49 (2), the Constitution of Sri Lanka (1972).

90 See Sections 54 and 55, the Constitution of Sri Lanka (1972).

91 See the Interpretation Ordinance (Amendment) Act of 1972. Section 1 construed the phrase “shall not be questioned in a court of law” as barring any inquiry by a court into the validity of any act on which the legislature had conferred this effect; Section 2 strictly defined the circumstances in which a writ of certiorari, mandamus, or injunction may be issued by the Supreme Court to set aside the acts of an executive authority or to compel it to perform an obligation; see Parliamentarian, 1972: 240. Section 121 (3) of the Constitution of Sri Lanka (1972) explicitly reserves in the National State Assembly the power to further limit by law the Superior Courts supervisory jurisdiction.

92 See Section 46 of the Industrial Disputes Act, No. 43 of 1950 (as amended by the Act, No. 62 of 1959).

93 During the debates on the Business Undertakings (Amendment) Bill, the opposition urged the government to accept an amendment rendering it possible for aggrieved parties to appeal against an acquisition order in a regular court of law. The government however rejected the suggestion, arguing that it would defeat the purposes of the Bill, as the process of appeal to the courts of law would take several years of delay. See Parliamentarian, 1971: 134.

94 See The Sunday Observer, 4 February 1973 for the brief filed by counsel to the Civil Rights Movement before the Constitutional Court impugning the constitutionality of the Press Council Bill of 1972.

95 See the criticisms of the Civil Rights Movement by the Minister of Justice in the debates on the Criminal Justice Commission Bill.

96 See the Ceylon (Parliamentary Elections) Order-in-Council, as amended by the Act, No. 9 of 1970.

97 Section 4 of the Constitution of Sri Lanka (1972) provides that the “sovereignty of the people is exercised through a National State Assembly of elected representatives of the People” (my emphasis).

98 See Chapter XI of the Constitution of Sri Lanka (1972) on the constitution of the National State Assembly, and Section 75 on the continuance of existing laws relating to elections.

99 For a recent clash between the two branches of the profession over a Bar Council ruling on an advocate's right of representation before labour tribunals and the regular courts of law without the assistance of a proctor, see Ceylon Law Journal, 2(1971): 314.

100 See supra p. 190, category (b) in the discussion on the value-commitments of the socialist coalition.

101 See the Peoples Committees Act, No. 16 of 1971; and N. M. Perera, Budget Speech, 1971–72: 207.

102 Ibid.: 174; Perera pointed out that during the days following the government's decision to demonetize higher-currency notes, those who helped the “tax evaders and hoarders of currency were the workers and [others from the poorest] sections of the people. For temporary gain they helped the rich capitalists escape the rigors of a very useful legislation.... Indeed the very people whom we wished to help joined hands with the exploiters”, (p. 173).

103 Although there is no statutory provision excluding the appointment of lawyers, in practice the government has strictly adhered to this policy. See the interview with Ratnasiri Wickremanayake, Junior, Minister of Justice, on file with the author.

104 See the statistics on the disposition of disputes by Conciliation Boards, 1964–72, on file with the Ministry of Justice; Goonesekere & Metzger, 1971: 97–100.

105 See Section 16 (6), the Constitution of Sri Lanka (1972).

106 See the speech of the Minister of Justice at the Annual Conference of Judicial Officers, 1972, on file with the Ministry of Justice; see also the Policy Statement of the Government of Sri Lanka (23 June 1972, Parliamentarian, 1972: 351).

107 See Budget Speech, 1971–72: 258–259; memorandum by the Legal Research Division on the draft law to relieve rural indebtedness, dated 14 August 1972, on file with the Ministry of Justice; Draft of the Settlement of Debt Act (1972) on file with the Ministry of Justice; and memorandum on the Draft Law by D. L. Mendis, on file with the Ministry of Justice.

108 The Settlement of Debts Law, No. 27 of 1975.