I covered the first Justice Siva Sellaiah Memorial Oration delivered by Prof. G.L. Peiris, then Minister of Constitutional Affairs in Chandrika Kumaratunga government, on January 12, 1998 for the Daily News. Prof. Peiris spoke about judicial creativity and its limits.

One of the judgments he gave as example for the lack of creativity of our judicial system was the ruling given by the Supreme Court and upheld by the Privy Council on the celebrated case of Kodakanpillai vs. Madanayake.

K.G.S. Nair, whose first name was Kodakanpillai was the Joint Secretary of the Ceylon Indian Congress, which was later renamed Ceylon Workers’ Congress. His name was removed from the electoral register in 1952 following the enactment of the Ceylon Citizenship Act of 1948.

He filed an action in the Kegalle District Court against Madanayake, Commissioner of Immigration and Emigration, challenging the removal of his name. District Judge N. Sivagnanasundaram ordered that Kodakanpillai’s name be restored in the electoral list and held that the citizenship laws were ultra vires of the Constitution.

He held that the citizenship laws violated Article 29 1 (C) of the Soulbury Constitution which provided that no such law shall… confer on persons of any community or religion any privilege or advantage, which is not conferred on persons of other communities or religions.

The government appealed to the Supreme Court where Chief Justice Jayatilleke, Justice Pulle and Justice Swan quashed the judgment of the District Judge and ordered that there was nothing in the face of the law to indicate that the legislation was intended to apply to the Indian Tamil community. Kodakanpillai appealed to the Privy Council and it concurred with the decision of the Supreme Court and ordered that the citizenship laws were intra vires the Constitution.

Prof. Peiris commented that the court refused to look into the element of discrimination contained in the law, which was so framed as to disfranchise only the Indian Tamils. He said the fact that the second of those laws, the Indian and Pakistani Residents (Citizenship) Act stipulating one’s paternal grandfather and great grandfather had to be born in the country to be entitled to gain citizenship rights, which was a devious and indirect means adopted to disfranchise the Indian Tamils was not taken into consideration. He correctly diagnosed the impact of that decision: “That was the beginning of the process of disillusionment on the part of the minority communities with the judiciary of the land.”

The disillusionment strengthened when the Supreme Court dodged the issue when the legality of the Sinhala Only Act was canvassed before it. In the Kodeeswaran case and in the Trial-at-Bar where former Tamil United Liberation Front leader A. Amirthalingam was charged with sedition the Supreme Court avoided making a pronouncement on that matter.

Kodeeswaran, a government servant, challenged the stoppage of his salary increment because he failed to sit for a Sinhala examination. He also questioned the legality of the Sinhala Only Act under which it was done. O.L. de Kretzer, District Judge, Colombo held that Sinhala Only Act was incompatible with Article 29 and declared that the Sinhala Only Act, bad in law. The Attorney General appealed against that judgment to the Supreme Court. The case was argued before a Bench comprising Chief Justice H.N.G. Fernando and Justice G.P.A. Silva.

The Attorney General raised a preliminary objection saying that a public servant was not entitled to sue the state for arrears of salary. Fernando CJ upheld that objection. He did not call upon the Attorney General to submit his arguments on the Sinhala Only Act.

Kodeeswaran appealed to the Privy Council, which held that Kodeeswaran had the right to sue the state, but declined to comment on the Sinhala Only Act since neither they nor the Supreme Court had heard any arguments on that matter.

The Privy Council remitted the case to the Supreme Court for a hearing on the validity of the Sinhala Only Act and the Treasury circular. The case was not pursued by Kodeeswaran because during the tenure of Dudley Senanayake as Prime Minister in 1965, the Treasury circular stopping the salary increments of those who did not pass the Sinhala examination had been amended and all Tamil public servants received their arrears of salary.

The District Court’s ruling that the Sinhala Only Act was void had not been challenged by the state at the Supreme Court or at the Privy Council. In this sense, the Act remains void in law, but the state decided to ignore de Kretzer’s ruling and live with it, thus debasing judicial process.

In the Trial-at-Bar too the Attorney General withdrew the case after the Supreme Court ruled that the Emergency Regulations under which Amirthalingam was arrested had lapsed and the arrest was illegal. The court ruled that it had no jurisdiction to decide on the constitutionality of the Sinhala Only Act.

In this context I wish to record a conversation I had with S.J.V. Chelvanayakam Q.C., the founder president of the Federal Party who led the democratic phase of the Tamil struggle till his death in 1977. I asked Chelvanayakam why his party did not challenge the legality of the Sinhala Only Act before the Supreme Court. His reply was: “It’s useless. It’s a Sinhala Supreme Court. The judges will find some technical reason to dismiss the case.”

He pointed out how a former chief justice Hema Basnayake led the opposition to the District Council Bill after his retirement.

In this context the new activism of the Supreme Court is definitely welcome to the Tamils. Some of its verdicts have benefited them, especially the judgments on road blocks, night searches of Tamil houses, ejection of Tamils from Colombo lodges.

But Tamils who believe in democracy and good governance are worried that the judiciary should not overstep its limits. Strict separation of powers demands that the judiciary should act as a check on the misuse and abuse of power by the executive, but not amount to, to quote Prof. Peiris’s words at the Siva Sellaiah oration, “A direct encroachment upon the legislative function.”