By Major General (Retired) Ranjith Rajapathirana Courtesy Ceylon Today

Julie Hathai; 7 July 1915 eventually became a phrase signifying a major calamity. It is one of the darkest days in the annals of history on which date, young Edward Henry Pedris, age 28 years (1887-1915) and a scion of an immensely wealthy elite SinhaleseBuddhist family in Colombo, was asassinated by a Panjabi firing squad, consequent to an unlawful sentence passed by the Court Martial. Incidentally on 2 March 1815, 100 years previously, the British solemnly undertook to protect Buddhism but did exactly the opposite by suppressing the Sinhalese – Buddhists majority. In May 1915, a local skirmish between Sinhalese and Muslims near the Hill Street Mosque in Kandy developed into large scale island wide communal riots. As usual, the Ceylon Police were passive onlookers and seeing the Police apathy, local Sinhalese hoodlums had a field day at the expense of Muslim traders.

A very weak Colonial Governor Sir Robert Chalmers had declared martial law and handed over the law and order situation to Brigadier General Leigh Malcolm, the General Officer Commanding the troops in the Island of Ceylon. A state of terror was unleashed by the Military and without discrimination, people were shot at sight. A series of drum headed Kangaroo Courts under the grand name of ‘Field General Court Martial’ (FGCM) were convened in which their Lordships, the members of the Court Martial, though they had already convicted the accused concerned before the trial, nevertheless proceeded to try him in a manner befitting to a Court of Justice. Henry Pedris too had the misfortune to come before such a FGCM and was automatically found guilty and shot at dawn on 7 July 1915 at the Welikada Prison by a firing squad composed of Punjabi soldiers of the British Army. As I shall explain later, the FGCM that tried Pedris was totally flawed and even the purported death sentence was not confirmed by the competent authority, the Governor of Ceylon. Furthermore, a docile Ceylon Supreme Court in the form of Sir Alexander Wood – Renton C.J, Justice Shaw and Justice De Sampayo erroneously declined to interfere with the sentences passed by numerous FGCM citing lack of jurisdiction. This article will mainly focus on the legal infirmities of the Court Martial that tried Pedris and the judgments made per incuriam by the Ceylon Supreme Court declining to interfere with the sentences passed by FGCM’s that were convened during the period of martial law, 100 days from June 1915 to August 1915.

FGCM  

The facts related to the Henry Pedris’ case are briefly as follows. Riots broke out in Kandy on 28 May 1915 and soon spread to Colombo and other parts of the Island. Two groups of Sinhalese and Muslims had clashed in Pettah near Pedris’ shop and when the safety of the shop was threatened, Pedris fired 2 shots into air using his revolver and the mob dispersed. Pedris was soon arrested and brought before a FGCM of British Army officers stationed in Ceylon on an Indictment containing 5 counts inter-alia, treason by levying war against Our Lord, the King (levying war by firing 2 revolver rounds into the air!). The offences were said to have been committed on 1June 1915. Martial law was declared on 2 June 1915 and the proclamation did not specify that it had retrospective operation and it is trite law under the English law that an Act or Order has no retrospective operation unless it is clearly so spelt out on its face. Thus Mr. Pedris’ trial was ab initio void because at the time of the alleged offence, martial law was not in force in Ceylon.

The FGCM, composed of British officers of 17^th Punjab Regiment (an Indian Regiment of the British Army) stationed in Colombo, was held at the Headquarters of the General Officer Commanding Troops Ceylon which was located at the present Defence School building at Malay Street, Slave Island. Unlike a General Court Martial (GCM), which must be presided over by a Judge Advocate General (JAG), for FGCMs, the presence of a JAG is optional. In the FGCM of Henry Pedris, there was no JAG and the Court Martial Board was entirely composed of lay Army officers who were not conversant in the law. Pedris was found guilty of treason and sentenced to death. In the court martial Pedris was defended by Advocate L.H. de Alwis.

Unlawful execution  

Pedris was tried under and in terms of the Army Act (1881) UK and in terms of the said Army Act, a death sentence passed in a British colony had to be ratified by the Governor of the Colony. In addition, Pedris was a member of the Colombo Town Guard, which was a unit raised under the Ceylon Defence Force (CDF) Ordinance No 8 of 1910. In terms of Section 19(1)(b) of the CDF Ordinance, no sentence of a court martial awarded in Ceylon for the trial of any member of the CDF shall be carried into execution unless confirmed by the Governor of Ceylon. Despite this mandatory requirement, the General Officer Commanding Ceylon, Brigadier General Leigh Malcolm did not refer Pedris’ case to the Governor for him to consider exercising clemency of the Crown. The Governor Sir Robert Chalmers protested over this omission and other cases came to be referred to him after this; vide A.C. Dep. Ceylon Police and Sinhala-Muslim Riots of 1915.Thus it is submitted that the execution of Pedris was unlawful since the death sentence was never confirmed by the Governor of Ceylon.

A docile Ceylon Supreme Court

Soon after his conviction by the FGCM, Pedris’ relatives filed an application for a Writ of Certiorari: a Writ to quash or set aside that which is invalid or illegal, and prohibition in the Ceylon Supreme Court but the relief was denied by a bench comprising Sir Alexander Wood – Renton Chief Justice, Justice Shaw and Justice de Sampayo. This judgment was never published in the New Law Report. Nevertheless, the erroneous reasoning of the Supreme Court can be inferred from two FGCM cases related to a prominent VIP W.A. de Silva and Edmund Hewavitharana, an uncle of Pedris and a kinsman of Anagarika Dharmapala (Don David Hewavitharana). Anagarika Dharmapala had a narrow escape since at the time he was in Calcutta.

In the case of W.A. de Silva (1915),a writ of habeas corpus was filed onbehalf of W.A. de Silva.  Adrian St V Jayewardene, paternal uncle of President J.R. Jayewardene, supported the application. The Supreme Court issued notice to the Military but later refused relief on the ground that per Sir Alexander Wood Renton C.J. on 29 June 1915; when martial law is involved, the function of the municipal courts is limited. They have the right to inquiry and the duty to inquire into the question of fact whether an actual state of war exists or not. When once that question has been answered in the affirmative: the acts of the military authorities in the exercise of their martial law powers are no longer justifiable by the municipal courts”.

In the case of Edmund Hewavitharana (1915), a writ of prohibition was filed by Eardley Norton, a well-known Madras barrister on behalf of Hewavitharana. Again the same 3 judges declined to interfere on the ground the Ceylon Supreme Court had no power to issue writs against a court martial.

It is submitted that the above two decisions are wrong and totally inconsistent with well-known English judgments on martial law and courts martial cases: vide R v Cowle (1759) 2 Burr 835, The Case of Theobald Wolfe Tone (1798) 27 How St Tr 613; In re Anderson 7 Jur NS 122. In the local case of DC Negombo 221 Grenier (1873) DC 122, Sir Edward Creasy C.J. held that with regard power of issuing writs, the Ceylon Supreme Court was in a position similar to the Court of Queen’s Bench in England. In any case, if the Ceylon Supreme Court was uneasy of a martial law matter, they could have referred same to the Privy Council, the apex court of Ceylon ex mero mottu whilst staying military proceedings locally.

The legal defence of Henry Pedris, Edmund Hewavitharana (his uncle) and N.A. Wijesekara and N.E. Wijesekara (brothers-in-law of Pedris) were undertaken by the law firm Messers D.L. and F. De Saram and made up of lawyers: Adrian St Valentine Jayewardene, Eardley Norton, and L.H. de Alwis and the legal cost was to the tune of Rs. 11113.54 an enormous sum by 1915 Standards; vide A.C. Dep. Ceylon Police and Sinhala -Muslim Riots of 1915 at P-129.  Nevertheless the valiant efforts of the lawyers were futile as Pedris was executed and bravely faced the firing squad at the Welikada jail.

Pedris Vs The Manufacturers Life Insurance Co Ltd (1915) 

After the execution of Pedris, the administrator of his estate sought to recover from the Manufactures Life Insurance, an insurance company, a sum of Rs. 25000/=, a massive amount in 1915, due on his policy. The insurance company refused payment on the grounds that Pedris was not eligible under the policy because he was lawfully executed. In an action filed by the administrator of Pedris’ estate in the District Court of Colombo (Case No DC Colombo 44358), the District Judge Wadsworth upheld the contention of the insurance company and dismissed the action. 

The administrator appealed to the Supreme Court and the matter came before Sir Alexander Wood – Renton C.J. and  Justice Shaw, same judges who earlier heard the 1915 martial law cases. The appellant (the administrator of Mr. Pedris estate) was represented by Bawa K.C. with E.W. Jayewardene (father of President J.R. Jayewardene), L.H.de Alwis and Skelton de Saram. The Respondent insurance company was represented by Alan Dreiberg K.C. and  Samawickrama.  

Per Wood Renton C.J at P.377. I would set aside the decree of the District Judge dismissing the plaintiff action and send the case back for further inquiry. It will, however, open to the plaintiff (the Estate of Pedris) to rebut that evidence by proving, if he is in a position to do so, that, in spite of the conviction, Pedris did not in fact commit treason by waging the war against the King”: vide Pedris v Manufacturers Life Insurance Co (1917) 19 NLR 321. In the District Court, the insurance company, presumably under pressure from the British Government, readily settled the matter by paying the full amount. Thus question with regard to the guilt of Pedris is still open. In fact the Pedris case set a precedence in Ceylon in that conviction by a criminal court is not conclusive with regard to civil (delictual or/ and contractual) liability of a person. 

Thus in Thenuwara v Thenuwara (1959) 61 NLR, (1960) 62 NLR 501, although Catherine Thenuwara was not indicted for murder of Dr. Thenuwara (her husband), yet in a testamentary case related to his estate, ex Captain Arthur Perera, who was convicted for the murder of Dr. Thenuwara, testified against his ex-girlfriend Catherine Thenuwara establishing her complicity. The District Judge Sivasupramanium, later Judge of the Supreme Court, awarded the estate to the brothers of Dr. Thenuwara on the legal principle that a murderer cannot take under a will or succeed to an interstate estate. The Thenuwara appeal was dismissed by the Supreme Court on a technicality.

Conclusions

1. In the circumstance aforesaid, it is evident that Pedris’ court martial was illegal on the grounds that:

In July 1915, King’s Courts were open and functioning in Ceylon and hence trial of civilians by courts martial was not permitted.

The alleged offences were committed on 1 June 1915 whereas martial law was declared on 2 June 1915; it could not have had retrospective operation of law.

In any cases, the death sentence was not confirmed by the Governor of Ceylon and hence there was no lawful sentence before the Officer Commanding the firing squad to carry into execution.

2.         On any one of the above grounds, Pedris was entitled to succeed had the Ceylon Supreme Court reviewed his sentence which it unlawfully declined whilst having the full power to review: vide cases mentioned above.

3.         Therefore this is a fit and proper case for the President of the Republic to exercise his power under Regulation 151(1) of the Court Martial Regulation.If it appears to the confirming authority that the proceedings of a court martial are illegal or involved substantial injustice to the accused and such authority has not confirmed the finding and sentence, he shall withhold his confirmation. If he has confirmed the finding and sentence, he shall direct the record of the conviction to be removed and the accused to be acquitted.”

4.       In the circumstances, the President of the Republic can still clear Edward Henry Pedris’ good name officially and legally under Court Martial Regulation 151(1) by publishing a proclamation in the Gazette to this effect.

Recommendations

1.  A Presidential Proclamation in the Gazette exonerating Edward Henry Pedris under and in terms of Regulation 151(1) of Court Martial regulations. 

2.  A Presidential Proclamation in the Gazette declaring all those who were killed by foreign invaders and the enemies of the state, from Chola times to 18 May 2009, as ‘Matyrs killed-inaction’ and to collectively award them the Desha Putra Sammanaya (Purple Heart), the highest medal currently awarded to killed-in-action/woundedin-action servicemen. 

3.         Appointing a Presidential Commission to chronicle a list of Martyrs who were killed by foreign invaders/enemies of the State from Chola times to 18 May 2009, the Day of Liberation. Although records might not be available with regard to earlier times, comprehensive records are available with regard to those who were killed in 1818, 1848 and 1915 insurrections and such heroes could be recognised individually by name. This Presidential Commission may examine historians, military and other experts and compile a Golden Book in which a list of all martyrs will be exhibited. Those who are identified and entered in the Golden Book” as martyrs should be awarded ‘Desha Putra Sammanaya’ individually.

The author: Major General (Retired) RanjithRajapathirana RSP VSV USP pscLLB(OU) LLM (KDU), Attorney-at-Law, former Judge Advocate General of the Army

(ranjithraja62@gmail.com)