By Rajan Hoole –
C. Kodeswaran was a Tamil officer in Ceylon’s clerical service, whose salary increment of Rs 10/= per month was suspended in April 1962. This was because he did not appear for a Sinhalese test which he was required to pass in accordance with a treasury circular of December 1961. The latter was issued in connection with implementing the Sinhala Only Act.
Kodeswaran filed action before the Colombo District Court contending that his rights under Section 29 of the (Soulbury) Constitution were being violated. Section 29 provided that Parliament could not enact any legislation which makes persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable, and similarly for privileges and advantages.
For example, one consequence of Sinhala Only was that a Sinhalese officer was exempted from learning Tamil to work in the largely Tamil- speaking North-East, while a Tamil officer generally functioning in his own language in the North-East was forced to learn Sinhalese. The case under Section 29 was quite clear.
In order to avoid an awkward hearing on the validity of the Sinhala Only Act, the Attorney General raised a preliminary objection, viz., that a public servant was not entitled to sue the Crown (i.e. the State) for arrears of salary.
O.L. de Kretzer who was then district judge, over-ruled the preliminary objection. de Kretzer also ruled in favour of Kodeswaran on the incompatibility of the Sinhala Only Act and Section 29, deeming the Act bad in law. The arguments will become evident in what follows.
Shortly after the judgement was delivered in 1964, the Attorney General appealed against it at the Supreme Court. The case was argued before a bench comprising Chief Justice H.N.G. Fernando and Justice G.P.A. Silva. The team for the Crown (Defendent – Appellant) was led by Walter Jayawardena QC, Acting Attorney General, who was assisted by H. Deheragoda and H.L. de Silva. The team for Kodeswaran (Plaintiff-Respondent) was led by C. Ranganathan QC.
The verdict was delivered in 1967 by H.N.G. Fernando CJ, setting aside the verdict and decree of the District Court (70 NLR 121). The arguments used are instructive and involved two stages.
Four years after capturing the maritime provinces of Ceylon from the Dutch, the British Crown declared by Royal Proclamation in 1799, that the system of justice in Ceylon will revert back to that which prevailed under the government of the United Provinces (i.e. the Netherlands). This provision was extended to the whole island in 1835. This meant that the Roman-Dutch Law was to be the basis for the common law in Ceylon. (By an almost contemporaneous proclamation, the Roman- Dutch Law was also made applicable to South Africa – then the Cape Colony.) The proclamation with regard to Ceylon made references to ‘ministerial officers’ and ‘institutions’ (of civil administration).
Under the Dutch administration, the relationship between the government and government servants possessed the legal characteristics of a contract of service, thus enabling the latter to sue the former for arrears of salary.
As the first stage of the judgement, it was concluded by Fernando CJ that the Proclamation of 1799 under the Governor, Lord North, did not intend to cover relations between the Crown and persons employed by the Crown. It was thus determined that these relations are covered by English common law, rather than Roman-Dutch Law.
It was held in this connection by Fernando CJ that the Privy Council judgement of 1884 in the case of Simon Appu v. Queen’s Advocate for breach of contract, had set aside the precedents which favoured the Roman-Dutch Law. This was not quite the position. A short time before Simon Appu’s case there was heard before the Supreme Court the case of Jayawardena v. Queen’s Advocate. Both these concerned breach of contract rather than arrears of salary.
Up to the time of Jayawardena’s case, the right to sue the Crown had the character of a “taken for granted law”. But here the Queen’s Advocate argued that suing the Crown was an “attempt to impugn the royal prerogative”. In giving his ruling on this case, Chief Justice Cayley said, “To hold at this date, for the first time, that a practice, which has so long been sanctioned by the Courts and acquiesced in by the Government, is bad in law,…would [lead to] widespread confusion and …in many cases to injustice.”
The question then arose whether the practice of suing the Crown in Ceylon arose from a Roman-Dutch source (as had been held in two precedents from Ramanathan’s Reports 1863-1868) or from Petitions of Right in English law. A successful petition of right would still in theory leave the Crown with the discretion whether or not to make restitution. (But there is a point in time where practice becomes law, and discretion void, as had evidently happened in England.)
In answering this question with regard to Simon Appu’s case, the Judicial Committee of the Privy Council, on the basis of the knowledge at their disposal, were unable to decide with certainty that the practice of suing the Crown in Ceylon was founded on Roman-Dutch antecedents. But finding that the legislature (in Ceylon) has recognised and made provision for such suits at least twenty-eight years ago, the Privy Council held that “they are now incorporated into the law of the land”. The correctness of the right to sue the Crown in Ceylon had thus been admitted.
The Supreme Court in its judgement in Kodeswaran’s case played down the last conclusion of the Privy Council above (in 1884), and used mainly its inability to find conclusive antecedents in Roman-Dutch Law. Fernando CJ thus concluded that Kodeswaran’s right to sue the crown must be determined under English common law.
Having come to this point, the Supreme Court went into the second stage of considering an Indian case, since English common law, unlike in Ceylon, was the basis for the common law in India. The case in question was that of High Commissioner for India v. Lall that was heard before the Privy Council in 1948. Lall had been a civil servant who appealed against wrongful dismissal and sued for arrears of salary. The Privy Council in Lall’s case relied also on the judgement in Mulvenna v. The Admiralty heard before the Scottish Court of Session in 1926. The Privy Council declared Mr. Lall’s dismissal void (and thus reinstated him), but also that he had no right of action for arrears of pay. The same was held by Fernando CJ to apply to Kodeswaran.
The Supreme Court thus set aside the District Court’s judgement on this preliminary issue. H.N.G. Fernando CJ stated in his judgement that he had not called upon the Acting Attorney General to submit his arguments on the Sinhala Only Act, since the action had been decided on a point of a general law.
Kodeswaran appealed to the Privy Council in 1968 (72 NLR 337) and the case was heard before Lord Hodson, Viscount Dilhorne, Lord Pearson and Lord Diplock. Among those representing Kodeswaran were Sir Dingle Foot QC, Ranganathan QC and S.C. Crossette- Thambiah. Among those representing the Attorney General were E.F.N. Gratiaen QC and H.L. de Silva.
The judgement of the Privy Council was delivered by Lord Diplock on 11th December 1969, on the eve of the 1970 general elections, setting aside the Supreme Court judgement on the preliminary issue.
We summarise below the main thrust of the judgement:
1 ) It was the intention of the Proclamation of 1799 that the Roman-Dutch Law shall apply to public servants recruited on local terms. The reasons are three-fold:
(i) The Proclamation marked the re- introduction of the system of administration by local officials that had prevailed under the Dutch, the abolition of which, after the capture of Colombo and Trincomalee by the British East India Company had led to rebellion in 1797.
(ii) The British occupation was then (in 1799) deemed temporary. This was so until Holland ceded Ceylon to Britain under the Treaty of Amiens in 1802.
(iii) The legal character of a contract, which the Roman-Dutch Law ascribed to the relationship between the Crown and public servants in Ceylon, and recognised long in practice, had no incompatibility with the rights and dignities of the sovereign.
2 ) The current of authority in English public law since early in the 19th century is that the arrears of salary of a civil servant of the Crown constituted a debt recoverable by Petition of Right. Lall’s case on which the Supreme Court relied is not a good example because most of the argument in that case centered around the question of dismissal. Moreover, none of the pertinent earlier authorities on the question of recoverability of arrears was drawn to the attention of the Privy Council in Lall’s case. Mulvenna’s case of 1926 on which the judgement in Lall’s case relied for the question of arrears, has not since been treated as correctly laying down the Law, and Lord Blackburn’s judgement in that case did not have the concurrence of the other two judges.
3 ) While 1) and 2) above are interesting in themselves, the crucial question is what does the common law in Ceylon have to say on the subject? The right to sue the Crown upon a contract had long been “sanctioned by the Courts and acquiesced in by the Government”. When its propriety was questioned in Jaywardena’s case, it was Chief Justice Cayley’s contention that it was too late in the day for him to declare the practice bad in law. He added that if the precedents and decisions upon which this Court acts are wrong, it must be left to the Court of Appeal to set them right.
However, when the Privy Council considered the question shortly afterwards in Simon Appu’s case in 1884, they declared the practice incorporated into the law of the land.
It is this that is relevant to Kodeswaran’s case and not the uncertainty about the derivation of the practice from the Roman- Dutch Law, which the Supreme Court relied upon as a point of departure. Indeed, had the attention of the Privy Council in 1884 been drawn to the passage from the work of the eminent early 17th century Dutch jurist Hugo Grotius, which contains the words that follow, their Lordships may well have ascribed the practice in Ceylon of suing upon a contract, to the Roman-Dutch Law:
“…we say that a true and proper obligation arises from a promise and contract of a king, which he has entered into with his subjects, and that this obligation confers a right upon his subjects…..” -De Jure Belli ac Pacis, Book Three.
However, it may be difficult to trace the evolution of the practice of suing the Crown in Ceylon to the Roman-Dutch Law for a number of reasons. Combined with the paucity of records it had acquired the character of a “taken-for-granted” law. But the Roman-Dutch Law, which was the starting point of the common law in Ceylon, has been used over the years to find solutions to legal problems in Ceylon, resulting in the evolution of an indigenous common law. Thus if precedents for a proposition of law can be found in the decisions of the Ceylon courts themselves that are not inconsistent with the British constitutional concept of sovereign authority of the Crown, there is no need to look for precedents in English common law or to Dutch jurists of the 18th century.
The Privy Council declined to comment on the other issues (e.g. the Sinhala Only Act) since neither they nor the Supreme Court had heard any arguments on these matters, and thought it inappropriate to comment without the considered opinion of the Supreme Court of Ceylon.
It is worth noting the gravity of the Privy Council decision in favour of Kodeswaran. It had rejected the Supreme Court’s contention on every key point. Ironically, it took the Privy Council in London to tell our judges, “Look, you have your own indigenous common law. The solution to your problem lies there and is quite unambiguous, having the authority of more than a hundred years!”
Thus by means of a tortuous argument the hearing on the validity of the Sinhala Only Act was circumvented. This was achieved, by the Supreme Court granting to Queen Elizabeth II, a feudal right that had become void in England for more than a century. The ruling, apart from being contrary to natural justice, rendered the Law nebulous rather than transparent.
With the case having been remitted by the Privy Council to the Supreme Court for a hearing on the validity of the Sinhala Only Act and the treasury circular, it should have got listed. We understand that it was not pursued by either side. One reason for it is that the treasury circular stopping the salary increments of those who did not pass the tests in Sinhalese had been amended in the mid-60s and all Tamil public servants received their arrears of salary. That was the time the Federal Party’s support was being canvassed by both the SLFP and the UNP.
An important point is that the District Court’s ruling the Sinhala Only Act void, had not been challenged by the State whether at the Supreme Court or at the Privy Council. In this sense the Act remained void in law, although the State decided to ignore de Kretzer’s ruling at the District Court, giving a moral victory to those who were against the Act. It was left to the State to prove in a higher court that the Act was valid or to put its house in order. It chose to live with anarchy. Such an attitude worked towards debasing all aspects of the legal process.
*To be continued..
*From Rajan Hoole‘s “Sri Lanka: Arrogance of Power – Myth, Decadence and Murder” published in Jan. 2001. Thanks to Rajan for giving us permission to republish. To read earlier parts click here