‘Sinhala Only’ & Its Effects On Ceylon’s Legal Tradition

By Rajan Hoole –July 23, 2016

Dr. Rajan Hoole

Antecedents Of July 1983 & The Foundations Of Impunity – Part XII

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.

Read More