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Kodeeswaran Case, Section 29 and Abolition of Privy Council

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By Mike Andree

It is very strange how the masses use the ballot to curb the freedoms that they had been enjoying for years. It is only after a long lapse that they come to their senses and realise that they had been led like wild animals to their own doom.

Democracy is a double edged sword which can cut the holder as much as it could cut the enemy. When politicians lead the people and rouse them into frenzy, the herd follows the master or leader and falls into an abyss from which there is no escape.

The right to appeal to the Privy Council, or His Majesty’s Council, was abolished by a special Act after the government led by Mrs Sirimavo Bandaranaike received a two thirds majority in the Parliament. The UNP had been reduced to seven seats.

One of the reasons for the UNP’s defeat was the coalition government of Dudley Senanayake had members of the Federal Party.

The background to the abolition of the Privy Council was the successful appeal filed by a Tamil Clerk named Kodeeswaran, who refused to learn Sinhala in order to obtain his increment. It was argued that Section 29 of the Soulbury Constitution was entrenched and no law could be passed to discriminate against the minority.

The Soulbury Constitution, which had only a few pages, compared to the Republican Constitution and the present Constitution, safeguarded the rights of the minorities. As long as the minorities felt that the judiciary was independent and they would be protected even if the local judges failed by giving approval to the popular sentiments in the country, the Privy Council would not.

The abolition of the Privy Council left the minorities without any source to adjudicate their grievances. Today, one would wonder whether there would ever have been a terrorist movement if the majority did not remove the rights, which had been protected by the judiciary and the Privy Council.

It is interesting to note that quite contrary to the belief and the faith they had in the leftists of this country, the Samasamajists and the communists, it was the golden brains of the leftists that deprived the minorities of the rights they had under the Soulbury Constitution.

The right of appeal to the Privy Council has subsequently been abolished in every single country except, perhaps, the Caribbean.

Therefore, one cannot blame the government in power for doing so. But, it was the government of the majority and the tyranny of majoritarianism that led to ethnic strife and ultimately opened the gate to terrorism.

Be that as it may, it may be interesting to note what would have been the fate of one of the most loveable politicians, who became the first member to represent Dehiowita from the Lanka Samasamaja Party and thereafter became a permanent member of the Senate with his comrades Doric De Souza and S. Nadesan. He was A. Reginald Perera, but known universally as Senator Mr. Reggie Perera. He won the Dehiowita seat and the UNP candidate came last.

Reggie Perera became a member of the first post independent Parliament. He was an amiable person who entertained journalists at his watering hole, ‘Sandella’. Nevertheless, his Trotskyite thinking did not please the UNP-led coalition government. Reggie, being an avowed socialist, did not leave any stone unturned in order to ensure justice and fair play to the poor and the oppressed.

It was one of the important functions of the members of the House of Representatives to visit the remand prison and inquire into the wellbeing of inmates. He was one of the few members of the House of Representatives who used this important privilege to visit the remand prison, but it almost became his undoing. On the 20th of June 1950, he paid a visit to the Colombo Remand Prison and was shown around by jail guards.

It is important to note that even under the imperialists, prisoners were regarded as humans and in order to prevent them from being treated as chattel, an important amendment was brought in 1939, where it was made mandatory that the jailor should maintain a Visitors’ Book, where the Judges of the Supreme Court, Senators or members of the House of Representatives and members of the Prisons Board could record their observations and make recommendations.

A copy of such observations and recommendations had to be forwarded to the Inspector General of Police and The Chief of Prisons, as he was then known.

Reggie Perera received a complaint from some prisoners that they had not been present in Court when their appeals against convictions were being heard. At that time, there existed the practice of dealing with unstamped petitions of appeal. Those petitions were sent to the Chief Justice, who in turn directed another judge to hear them. Justice Basnayake, was assigned to hear those petitions. He acted in revision in a deserving case and rejected the others.

The complaints of the prisoners were that they were not present when the petitions were being heard. Reggie Perera like a true Samaritan and a man of the people made the following note in the Prison Visitors’ Book. “Visited Remand Prison in the company of Jailor Wijewardena. Premises clean. Adequate library facilities required.

The present practice of appeals of Remand Prisoners being heard in their absence is not healthy. When represented by Counsel or otherwise the prisoner should be present at proceedings. In my opinion not more than one prisoner should be in a cell (7×9) approximately.”

On the following day he wrote a letter to the Ministry of Home Affairs and Rural Development bringing to his notice substance what he has recorded in the Visitors Book and requested redress be provided. The Acting Commissioner of Prisons and Probation forwarded Reggie Perera’s remarks to the Registrar of the Supreme Court seeking his observations.

The Registrar forwarded the same to Justice Basnayake, who was in charge of unstamped petitions. The judge immediately made the following minute ‘Registrar, the statement is incorrect and its contempt of the Court. Issue a rule on A. Reginald Perera returnable on Tuesday the 25th.

I shall sit specially on that day. Reggie Perera was present and moved for further time to obtain certain documents that were not in his possession and obtain further legal advice. It was refused.

Thereafter, Reggie Perera, in his own inimitable style, said that he had acted in pursuance of his duties as a member of the Legislature and he had no intention to bring the Court into contempt.

In spite of his statement, in answer to the Court that he acted on the strength of the information given by the Jail Guard the Judge pronounced him guilty and ordered a fine of Rs.500/- and in default six months rigorous imprisonment.

If there was no appeal to the Privy Council we would have lost such an amiable and pleasant personality and he would have been deprived of being a member of parliament or a senator.

It was the very same Privy Council which was later abolished by the very same stalwart of the Samasamaja Party, in order to ensure that neither Reggie Perera nor anyone else, who was aggrieved by the decision of the Supreme Court, could appeal, though at a cost, to the Privy Council.

What is very important to note is in this instance there was no right of appeal to the Privy Council due to the nature of the proceedings.

In spite of the unreasonableness of the order of Justice Basnayake, which would ultimately disenfranchise Reggie Perera, the Privy Council being not concerned whether Reggie Perera was a Trotskyite or about other petty matters which would enter into thinking of a local judge, went out of their way and applied the general rules applicable to a criminal conviction and granted leave and entertained the petition.

No one from the government of Sri Lanka appeared on behalf of the King. Lord Radcliffe, in his order stated: “it’s proper that the Courts there should be vigilant to correct any misapprehensions in the public that would lead to the belief that the accused person or prisoners are denied rights that ought to be theirs. But, Mr Perera, has a right that must be respected, and their Lordships are unable to find anything in his conduct that comes within the definition of Contempt of Court.

What has been done here is not at all that kind of thing Mr Perera was acting in good faith of what he believes to be a member of the Legislation. His information was inaccurate, but he made no public use of office.

Contenting himself with entering his comments in the appropriate instrument, the Visitors Book, and writing to the Minister. When these and no other circumstances, that attended the action complaint of there cannot be Contempt of Court.’

If not for the existence of a Privy Council Reggie Perera would have been unseated and not have been able to enter the Senate.

It’s a question of conjecture whether Reggie Perera would ever start a club for the journalists and artists to meet and wine and dine on the very sumptuous spread prepared by a master in the Arts of Gastronomic delights, Senator Reggie Perera.

His mingling with the artists and film critics made him to produce a film called ‘Sadol Kandulu’, which was criticized by one of the journalist who frequented Sandella. There was hardly anyone in the Colombo’s elitist circle who had not enjoyed Reggie’s company and the food he himself prepared.

When ‘Sandella’ went bankrupt and anyone asked him what the reason was, he said ‘Nanayakkara Pathirage Martin Perera did not pay his bills’. Such was his humor and his larger than life personality.

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