Defence
Nihal Jayawickrama: with and without civic rights

nihal.jpg (10086 bytes)by Malinda Seneviratne
These are days of litigation and counter litigation, wild accusations met with even more outrageous allegations, vilification opposed by counter-vilification. In short the extraction of an eye (or more) for what is perceived to be an extraction of an eye. All we can tell is that as a nation we are poor because we have allowed small-minded people to map out the contours of our sadly broken journey. Pettiness, needless to say, is a thick wet blanket. We cannot move forward.

Still, it would not be wrong to say that the world has always been inhabited by petty-minded people and that "revenge" has not been altogether absent even before our society was cut loose from its cultural moorings and set afloat on those high adharmishta seas. For today’s school children, Sirimavo Bandaranaike being deprived her civic rights is a political fact, to be memorised in a social studies class. Back then, when it actually happened, it was political history in the making. Three people lost their civic rights in those heady days immediately after the UNP came to power with the promise of a just and free society. Sirimavo, Felix Dias Bandaranaike and the former Permanent Secretary of the Ministry of Justice, Nihal Jayawickrama. The first two are no longer with us.

When Felix died, I remember my father writing an appreciation of the man, where he commented that it was in death that Felix won back his civic rights. Sirimavo ultimately recaptured power and as such got to clear her name, not least of all because her detractors had by that time put to shame anything untoward she may have done while in power by their gross crimes against the people. Jayawickrama too, naturally, has a version of that history. It needs to be articulated.

People are not reducible to a single event in their lives, and yet all of us are marked by particular incidents or people or ideas that capture our imagination. Nihal Jayawickrama dwelled at length about his tenure as Permanent Secretary to Felix in the United Front government between 1970 and 1977. There is of course a before and an after which also reveal to us this man and his character.

He was born in Galle in 1937 and had his early education at Richmond College. When he was around 9 years old, he had joined the Royal Primary. "I actually edited the College Magazine with your father. We could never agree on the editorial, so we decided that we would do it alternately. He wrote his editorial in verse, I in prose. I couldn’t understand what he was saying." I smiled because I know that my father can be at times obscure, but more so because for the most part he is one of the most lucid people I know.

He had gone to school from his uncle’s house during the time he was at Royal. "My uncle, T. S. Fernando, was a lawyer and later a judge. He was a great influence on me." According to Nihal there was never any doubt in anyone’s mind about what kind of profession he would take up. "There was never any question about me doing anything other than law. My father was a lawyer, I had cousins who were lawyers and it was natural for me to follow suit. My brother chose to do medicine and created quite a consternation in the family!"

Jayawickrama had entered the Law Faculty at Peradeniya in 1958. He joined the bar in 1962. "I really enjoyed working at the bar. After a year I applied to the Attorney General’s Department but was told that I was inexperienced and advised to apply later. I had a head start because of relatives in the profession. Also, I knew all the judges since I lived in a judge’s house. So I felt quite comfortable." He had been so happy at the bar that when the AG’s Department had called him for an interview in 1965, he had said he did not want to be considered.

He had worked for Colvin R. de Silva, C. Renganathan, Vernon Wijetunge, and H. W. Jayawardena and had apprenticed under A. H. C. de Silva, QC, whom he described as a lawyer of integrity.

He married Sarojini Amarasuriya, the daughter of Thomas Amarasuriya, Senator, in 1965. "There were no lawyers in her family, only politicians," he said.

It was around this time that Jayawickrama had got involved in political cases and with Felix. He had been retained by a Kandy lawyer, Sapumal Dolapihilla, to appear with Felix to recover possession of an elephant. Felix had been his brother’s classmate. In fact while at Peradeniya, just after the 1960 elections, Nihal had helped form an "apolitical" organisation called United Nations Students Association on campus and he had invited Felix to talk on "the New Lanka".

"After the Kandy case, he wanted me to appear in a number of election petitions as his junior. I was involved in these cases, against a whole host of SLFP MPs, for 2-3 years. As a result I lost a lot of lucrative work. Getting involved in election petitions meant that I had to give legal advice to Mrs. Bandaranaike."

Around 1968 there had been a split in the bar council. Jayawickrama, along with some others, had wanted changes effected in the procedural laws which they considered to be outdated, having been enacted in 1868 when the socio-political order was very different.

"In 1957 SWRD’s Minister of Justice, M. W. H. de Silva undertook the only legal reform in this regard. He proposed Conciliation Boards in order to revive the procedures used in the gamsabha system. This was a dispute resolution system that our people were familiar with. It was not implemented until the 1970s."

A group of young lawyers had decided that the Bar Council should change. Led by J. M. Jayamanne, they first set up a rival bar council. This was called the "Red Cross Bar" since the first meeting was held at the Red Cross headquarters. Nihal had been the secretary. "Peace talks were held between the two groups and it was decided that a common election be conducted by the two secretaries. We swept the elections. Colvin won, I was second."

Before the 1970 elections, Jayawickrama had helped Sirimavo by giving information for the UF manifesto. "We expected her to effect change, especially in terms of legal reform. After the election, she told me, ‘You have been complaining. So come as Permanent Secretary of the Ministry of Justice. I will give you a free hand.’ She also stressed that this was not a ‘reward’ but that she wanted to get things done." He had reckoned that he could get back to the bar after 5 years, so he had accepted.

There had been a bit of a squabble about who should be made Minister of Justice. The SLFP Lawyers Association had wanted their president, S. S. Kulatilleke to be appointed. "Mrs. B’s choice was T. S. Fernando, but the SLFP lawyers objected saying ‘he is not one of us’. Mrs. B had a problem with Kulatilleke because he had acquitted her brother, Mackie in a bribery case around 1967. The SLFP lawyers then suggested that the immediate past president be appointed, and so J. M. Jayamanne became minister. I worked for a year and a half with a good man, but one who was suffering from poor health. In 1972, with the new constitution, Felix was made minister."

Jayawickrama recalled 1971 as a tough period on account of the JVP insurrection. Apparently there were intelligence reports that warned of a possible insurgency, but the legal statutes needed for preventing it were not in place. "The laws were inadequate. So we drafted the law, "Prevention of Violent Insurrection Bill". It basically gave power to the Police to detain someone for more than 24 hours. It would give them enough time to question. The cabinet threw it out. The CP and the LSSP argued that it was a police conspiracy directed against the left. This was in December 1970.

"There were more reports in the next few months and the bill was taken up again in March 1971, but the CP and the LSSP would not agree. Finally it was made into law through emergency regulations. The government was totally unprepared for the insurrection. No arms had been purchased in 7 years. The army was not trained to handle anything like this. Sepala Attygalle insisted that the army can’t hold on and asked Sirimavo to seek help from India. She refused, so he asked me to persuade her. She told me ‘The day I bring a foreign army...that’s the day I lose my right to rule this country.’

"After two weeks or so, things changed. The government got enough equipment. Sirimavo said that it was time to grant an amnesty to the insurgents. She promised safe conduct to those who hand themselves in. Since there was concern that the police, having lost men and police stations, might take revenge on the prisoners, public servants were mobilised so that the rebels could surrender to them instead.

There were more than 16,000 arrests and the police said they just couldn’t handle the investigations. So a special unit of lawyers and public servants were set up. The Criminal Justice Commission Act was introduced to facilitate the process. There was a lot of opposition to this, and in fact the Civil Rights Movement was born out of these protests. It is easy to criticise when you don’t have to deal with the responsibility."

Jayawickrama was of the opinion that there were three laws passed between 1972 and 1975 which revolutionised the legal system. First full scale implementation of conciliation boards was begun. "You had to go to these boards to get a certificate before going to court. More than 50% of disputes were settled this way." "Written submissions" were introduced into legal procedure, and the concept of suspended sentences and "community service" were brought in to clear the prisons.

"What really irritated the lawyers and the bench was the idea of ‘written submissions’. It naturally made their work more tedious."

He made the pertinent observation that they had made a fatal mistake of believing that a two-thirds majority was enough and that they thought that it was not necessary to carry the legal profession or the judiciary.

As one would expect, he was very critical of the procedures used by the UNP government to deprive Sirimavo of her civic rights. "JR had a plan. It was very clear. He wanted Mrs. B out of the political arena. He began by virtually clearing the Supreme Court. A Presidential Commission was appointed to investigate the three of us. There were 45 charges levelled against me. And it was not possible for me to return to the bar."

He went on to describe the main charges and made succinct arguments in his defence. To him there was clear ill-intent in the proceedings not least of all because steps were taken to prevent him from taking up a position as a research fellow in the University of London. "In the end I opted to go for a full defence. S. Nadesan, Jack Kotelawala and Faiz Mustapha agreed to appear for me free of charge. I was found guilt of almost all the charges."

After "the trial" he went back to London and completed his PhD. In 1983 he took up a teaching position in the University of Hong Kong. "It was an exciting offer. 1984 was when the treaty was finally signed to give back Hong Kong to China. At that time people were very indifferent about politics. They would ask ‘Why vote? We don’t know how to vote!’ I wanted to make them conscious of human rights. Hong Kong was the only British colony without a Bill of Rights. I argued for it, advocated it strongly, and yet it didn’t make sense. Things changed with "Tiananmen" in 1989."

While in Hong Kong, he contributed a regular column to the Hong Kong Standard. It had apparently been mostly political commentary, focusing on issues related to the coming transition.

Upon reaching the age of 60, he had "retired" and taken up a job with Transparency International (TI), based in Berlin. TI was basically an organisation set up to address the issue of corruption. Its mandate was to mobilise civil society agents against corruption. Jayawickrama was its Executive Director. TI worked closely with the World Bank. I put it to him that the World Bank has hardly any moral authority to talk about corruption. He countered that this project was important and necessary since it sought to criminalise the bribery of foreign government officials.

Jayawickrama had been very keen on curbing funding for political parties and arresting corruption in the judiciary, but TI has not been interested. The UN however was interested in his ideas and after two and a half years with TI, he had moved to the United Nations Centre for International Crime Prevention, based in London. He had recommended that they work with judges. Chief Justices from Nigeria, Tanzania, Uganda, Sri Lanka, Bangladesh, Nepal and from Karnataka (because India was too big) are associated in this project.

We had already talked for more than two and a half hours. Clearly this man had much more to say about other issues. I asked him about the 17th Amendment and the "independent commissions". He observed that we have politicised all the structures and that this is a serious problem. On the "Executive Presidency" he said that it generally leads to an authoritarian system.

How is Nihal Jayawickrama to be assessed twenty plus years since he lost his civil rights? He seems to have won global citizenship, although I am not sure if this is an honour given what "the global" connotes these days. In any event, the man’s skills have been utilised by other countries and other peoples. My impression of the man, in a general sense since I had never talked to him previously, is that he has courage of conviction.

Like all human beings, he probably has his faults, and probably these are less pernicious than made out to be and certainly benign compared to the horrendous imperfections apparent in many who succeeded him. I can see how people could perceive him to be arrogant, especially when backed by power. Perhaps what really absolves him is the fact that those who vilified him and hounded him did precious nothing to improve or change the system he helped put in place. In any event, a remarkable man not easily brushed aside as ineffective or mediocre.


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