110th Birth Anniversary:

Some reflections on the life and times of J.E.M. Obeysekere

Sam WIJESINGHA

Recently we have heard well deserved praise of the Police Department for some swift detections. Time was when the Police took pride in solving crimes and duly bringing criminals to justice. That was an era when officers received recognition of their merits and politicians seized no opportunities to interfere with investigations. Then the underworld had no inroads to power, politics or the police.

One of the most difficult cases that was dependant entirely on circumstantial evidence came up in Ceylon in 1933. A native of the United Kingdom, Alexander Kennedy, who had lived in Colombo since 1909 traded in footwear and skins in the Times Building. He was accused of causing mischief by fire in respect of the building which contained his shop and of the property therein to improve his embarrassed financial position so that moneys could be claimed from the Insurance Company.

The case involved evidence relating to complicated financial transactions and to technical scientific matters regarding the cause of the fire. A decision had to be made whether the fire was due to an electrical short-circuit which ignited the coal gas or was the result of the accused owner deliberately setting fire to his stock, over which petrol had been poured.

The evidence

The collation of the evidence was by the Police, with the professional assistance of J.E.M. Obeyesekere, acting Deputy Solicitor General. The trial lasted 34 days before Justice Allan Drieberg. The accused was unanimously convicted on October 20, 1934. The appeal to the Privy Council was dismissed. Their Lordships mentioned that the summing-up to the Jury was unexceptionable. This was the first case in Ceylon in which it had been proved that a fire was deliberately caused to defraud an insurance company.

On April 11, 1934 a European planter whilst engaged in transporting a large sum of money was shot dead. That was the Talgaswala Murder Case in which the investigation presented considerable difficulty and the evidence was entirely circumstantial which J.E.M. helped the Police to gather. The courage and enthusiasm with which he devoted him self to this complicated trial revealed a keen sense of duty. The trial started in November 1934, soon after the Kennedy case. His masterly opening of the case for the Crown, and the skill with which he handled the circumstantial evidence on which the case solely depended, revealed the thorough manner in which he had studied the progress of the investigation from the very slender clues which led to the arrest of the accused.

Some may remember a similar case in the late 1940s - the White House case - where a planter was shot on the way to Ratnapura. Here, the planter's wife who was driving the car, had the sense to drive away with her dead husband by her side. Justice A.C. Alles (now in retirement) was the young prosecuting Crown Counsel who brought the case to a sensationally successful conclusion.

J.E.M. was educated at Richmond College, and at S. Thomas' College. His colleagues at S. Thomas' were S.W.R.D. Bandaranaike, A.G. Ranasinghe, L.J. de S. Seneviratne, K. Somasuntharam and S.P. Wickramasinghe (the latter four became Civil Servants), S.J.V. Chelvanayakam, E.B. Wikremanayake, L.W. de Silva, Col. S. Saravanamuttu and R.S.S. Goonewardena (all of them became Advocates and the last a member of the State Council and Ambassador to the U.S.A.) F.J.T. Foenander and A.S. Rajasingham (who became doctors), H.A.J. Hulugalle (who became Editor of the Ceylon Daily News), D.T. Wijeratne, the Government Scholar who was principal of Dharmasoka College, Ambalangoda, I.H. Wijesinghe who also selected the teaching profession, was Classics Master at Royal College and retired as Charity Commissioner of Colombo and of course, Canon R.S. de Saram, who became Warden of S. Thomas' College.

J.E.M's father, Dionysius C.F. Obeysekere, Crown Proctor of Galle, who was educated at Colombo Academy later known as Royal College, died in 1917, J.E.M. took to teaching at All Saints College, Galle and later became lecturer in Mathematics at the Government Training College, Colombo, succeeding E.W. Kannangara who passed into the Ceylon Civil Service in 1919. It was at the Training College that he met his future wife.

Ceylon Civil Service Examination

In 1920 he had ideas of sitting the Ceylon Civil Service Examination and was recommended to the Colonial Secretary by Warden W.A. Stone of S. Thomas' as a student who showed exceptional ability. He had got a First Class in the Cambridge Senior and passed the London Intermediate Examination in 1917, qualifying for the Government Scholarship. Warden Stone mentioned that "he came from a good Galle family which, from both sides, had Mudaliyars serving the Government".

J.E.M.'s grandfather was Muhandiram John F. Obeyesekere and the Muhandiram's brother, William, was the Mudaliyar of Morawak Korale in 1867. Their ancestor, Don Owen Ferdinandus, an officer in the Dutch Military Fort in Galle, on being appointed to high office in the Talpe pattu in the middle of the 18th Century, added the name Obeyesekere and the family lived in Kataluwa.

J.E.M. who was born on April 25, 1899 was under-age to take up the Civil Service examination in spite of Warden Stone's recommendation. Having completed his Law studies, he was enrolled as an Advocate in 1922, taking his oaths along with J. Mervyn Fonseka of Royal College and Walter Olegasegeram of Trinity College. After about two years at the unofficial Bar, he was selected by Sir Henry Gollan, the Attorney-General, to act as Crown Counsel in 1924 and although he was less than 28 years of age, was confirmed in 1926, probably the youngest to be so confirmed. At the time J.E.M. was confirmed. Crown Counsel, L.H. Elphinstone, K.C. was the Attorney-General with M.T. Akbar as Solicitor-General and Stanley Obeysekere as Deputy Solicitor-General. The Crown Counsel he joined were W.E. Barber, Vernon Grenier, R.F. Dias, C.C.A. Britor-Muttunayagam, J.W.R. Illangakoon and M.W.H. de Silva.

J.E.M. developed as a reliable prosecutor who could maintain an unemotional atmosphere in Court whatever the degree of sensation the case may have caused. He filled the prosecutor's role with that courtesy, impartiality and high sense of duty that inspire confidence in the administration of justice. While he was fair to an accused, he could at times be extremely effective in replying to the defence with brilliant flashes that showed he had closely studied the facts of the case. These proved his cogent and logical reasoning which helped the judge to sum up with scarcely any misdirection and the Jury to arrive at a fair and just verdict. These were the traditions set by outstanding Crown Counsel like C.M. Fernando, Stanley Obeysekere, and later on by E.H.T. Gunasekera and H.W.R. Weerasooriya.

However, at times J.E.M. had the characteristic to have no patience to embroider his words with silk trimmings. He said what he said with such candour that at times it disconcerted the listener and even caused irritation. This made him misunderstood by many but the misunderstanding was short-lived. His actions and words were well intentioned and free from malice. In 1930, his fellow Crown Counsel R. F. Dias wrote to him:

Attorney-General's Chambers,
Colombo.
22nd Jan. 1930.
"Dear J.E.M.

I hope you will not be offended at my pointing out to you that the tone of some of your drafts are such that I have not been able to sign them without amending them when submitted to me when you were out on circuit. I too commenced my career by writing rather freely and this brought for me a rebuke from the Attorney-General himself and I have reason to believe that the impression caused in high circles has been prejudicial to my advancement in service. As a well-wisher of yours, I hope you will benefit by my experience".

Yours sincerely
Sgd/R.F. Dias"

With the inauguration of the Donoughmore Constitution the office of Legal Secretary was created. In the early years, Sir Edward Jackson, the Attorney-General himself, functioned in both posts. Meanwhile the new post of Assistant to the Attorney-General had been created in October 1926 to which the initial appointee was L.M.D. de Silva (later of the Privy Council), followed by M.W.H. de Silva, J.E.M. first acted in the post of Assistant to the Attorney-General in 1932.

He had also acted for short periods as Magistrate, Colombo and District Judge, Chilaw and since 1934, as Deputy Solicitor-General. Of the seven Crown Counsel in 1926 mentioned above, only three remained after the retirement of Vernon Grenier in 1933, namely, J.E.M. the Senior Crown Counsel, M.W.H. de Silva, Assistant to the Attorney-General and J.W.R. Illangakoon, acting Solicitor-General and later Attorney-General.

Murder case

Another sensational "murder" case that exploded in 1933, "a case of particular importance in view of the social status of the accused", had been investigated by the Police with instructions from J.E.M. who himself appeared at the non-summary inquiry. But, for some reason, he did not prosecute at that trial. In June 1934, the then Acting Deputy Solicitor-General M.W.H. de Silva, assisted by H.L. Wendt, Crown Counsel, conducted the prosecution in what was commonly known as the Duff House case before Justice M.T. Akbar and an English speaking Jury. After a trial lasting 21 days, by a verdict of 5-2 the accused was found guilty of murder. At that time there was no Court of Criminal Appeal.

The only remedy to an aggrieved accused was by way of appeal to the Privy Council in London. Two years after the conviction, on July 29th 1936, whilst M.W.H. was still acting in his 13th month as Solicitor-General and J.W.R. Illangakoon, the Solicitor-General, had begun to act as Attorney-General, Privy Council held that at this trial:

1) hearsay evidence had been admitted,

2) the directions under Section 106 of the Evidence Ordinance were open to very serious objection, and

3) undue pressure appeared to have been exercised in the jury.

In view of these findings, "the proceedings before Justice Akbar were deemed irregular and tending to divert the due and orderly administration of the law into a new course which may be drawn into an evil precedent in the future". They held, inter alia, that "it is not the law of Ceylon that the burden is cast upon an accused person of proving that no crime has been committed." The Privy Council further declared that whilst they did not desire to lay down any rules to fetter discretion or to discourage candour and fairness on the part of those conducting prosecution, they could not approve of the prosecution calling witnesses irrespective of considerations of number and of reliability, or of the prosecution discharging the functions both of prosecution and defence. If it does so, confusion is apt to result when the prosecution calls witnesses and then proceeds to discredit them by cross examination. The Privy Council advised that the appeal of the accused should be allowed and the conviction and sentence quashed.

At this time it was rumoured that the post of Deputy Solicitor-General in which J.E.M was acting, was shortly to be suppressed and that M.W.H. de Silva, who was acting in the post of Solicitor General, may be transferred to the Judicial Service to enable E.A.K. Wijeyewardene, the Public Trustee, to the post of Solicitor-General. Submissions were made to the Attorney-General that if it was the intention of the Government to appoint M.W.H. de Silva to the post of Solicitor-General, considerations of loyalty to a brother officer who was J.E.M's senior, did not permit him to urge his claims against M.W.H. However, if for any reason it was proposed not to appoint him, J.E.M's claims were urged to that post.

From 1915, since the appointment of T.F. Garvin at the age of 34, the post of Solicitor-General had always been filled by a member of the Attorney-General's Department, viz. M.T. Akbar, Stanley Obeyesekere, L.M.D. de Silva and J.W.R. Illangakoon, respectively. Prior to 1915 there were a few instances where leading members of the Bar, invariably King's Counsel, were appoint as Solicitor-General. There was not a single precedent for the appointment of a person who was not a member of the practising Bar, whether in its official or unofficial side.

When Paul E. Peiris of the Ceylon Civil Service was District Judge, he was deeply impressed by the clarity of thought, the order and method behind the advocacy of E.A.L. Wijeyewardene (a one-time Government Scholar to Cambridge University) who was then leading Counsel in the District Courts. When Paul E. Pieris was appointed to the newly created post of Public Trustee, he persuaded E.A.L. Wijewardene to leave the Bar and join him as his Deputy in 1932. Having himself succeeded Paul E. Pieris as Public Trustee, he fulfilled his obligations to the New Department, reaching fresh horizons and establishing it on a sound footing. E.A.L. Wijeyewardene (from outside the bar) looked afresh for new field in the Law.

Solicitor-General

With the situation in the Attorney-General's Department as it was in October, 1936 E.A.L. Wijeyewardene found no difficulty in making a return to Hulftsdorp to the substantive post of Solicitor-General. M.W.H. who might have been confirmed as Solicitor-General and given Silk, who might have been the first Buddhist Puisne Judge, was out of the Attorney-General's Department and went as acting Additional District Judge, Colombo. Moreover, Justice Akbar who might have been the first Ceylonese Chief Justice, retired prematurely at the age of 56. J.E.M. who was the Crown Counsel in the Duff House case who had assisted the Police in the investigation and led evidence at the non-summary inquiry was appointed acting Public Trustee from October, 1936. Incidentally, he was succeeded as Public Trustee by his old Thomian classmate, A.G. Ranasinha of the Ceylon Civil Service. J.E.M. reverted to his new place of Senior Crown Counsel in November 1936 but resigned in 1938 and reverted to the unofficial Bar.

After the departure of the acting Solicitor-General, four outsiders went through the Attorney-General's Department, (as Law Officers of the Crown) two of them to the Supreme Court. Of these, E.A.L. Wijeyawardene who was appointed to the Supreme Court in 1938, became one of the outstanding judges of this country.

The other was E.G.P. Jayatilake, who went to the Supreme Court and succeeded E.A.L. Wijeyewardene in 1948 as Chief Justice. M.T. de Amarasekera, K.C., after a brief spell in the Attorney-General's, reverted to the unofficial Bar. J. Mervyn Fonseka, who came from the Legal Draftsman's Department, died in office. J.W.R. Illangakoon appeared to feel or was made to believe that being the Attorney-General and also having been the only person to have acted both in the 1931 and 1936 State Councils as Legal Secretary, his rightful place was Chief Justice of Ceylon and not that of a Puisne Judge. His predecessors Sir Charles Peter Layard, Sir Alfred George Lascelles and Sir Anton Bertram rose to the post of Chief Justice from the post of Attorney-General. However, in December 1939 with the departure of Chief Justice Sir Sydney Abrahams, the post was offered to J.C. Howard, Chief Justice of the Gold Coast, who had come to Ceylon in October 1936 to fill the newly created post of Legal Secretary. Before that the Attorney-General functioned as the Officer of State, i.e., Legal Secretary under the Donoughmore Constitution. From 1931 to 1936, Stanley Obeyesekere, L.M.D. de Silva and J.W.R. Illangakoon functioned as Officers of State whenever each to them acted in the absence of the permanent Attorney-General, Sir Edward Jackson. Within a short time of the elevation of Sir John C. Howard to the post of Chief Justice, unfortunately Attorney-General J.W.R. Illangakoon died.

It was only in May 1941, almost 6 years after he was first appointed to act as Solicitor-General, that M.W.H. as Attorney-General, got back to his position as a Law Officer of the Crown, but that too, via the tardy and devious route through the District Court of Chilaw and Kandy. He was made a King's Counsel in January 1942.

Reasonable doubt

When he was Attorney-General, the burden of proof under Section 106 of the Evidence Ordinance arose in another form in the case of King Vs. James Chandrasekera where a question stated by Justice Mosely, S.P.J. was heard by a Bench of seven Judges whether any general or special exception in the Penal Code when pleaded by an accused person, the accused is entitled to be acquitted if a reasonable doubt is created in the minds of the Jury as to whether he is entitled to the benefit of the exception so pleaded. This Section arose in the Duff House case. H.V. Perera, K.C., and J.E.M. Obeysekere - who as stated before reverted to the unofficial Bar in 1938 - for Chandrasekera and M.W.H. de Silva, K.C., as Attorney-General, substantively agreed on this decision.

Meanwhile, with these vast changes at Hulftsdorp in the late 1930s when only J.W.R. Illangakoon was the sole sentinel left in the Attorney-General's Department out of those members mentioned above in 1926, J.E.M.'s return to the unofficial Bar in 1938 met with immediate success. His precision and lucidity of expression and his mastery of the English Language, made it easy for him to submit his cause expeditiously for ready understanding by any judge. He had a remarkably wide practice the moment he resigned from the Attorney-General's Department. That was the time when the Court of Criminal Appeal had been inaugurated and he, along with H.V. Perera, K.C., set the standards for the Court of Criminal Appeal. He was an all-rounder in that he could handle criminal and civil cases, writ matters and election petitions. But he died in 1945, so cutting short a brilliant career and depriving to the legal profession and the country a remarkable man of exceptional ability. Although the Law had been his profession, J.E.M. never allowed it to dominate his life to the exclusion of everything else. He had a sound commonsense, a studied knowledge of human nature and an uncanny instinct in sizing up a witness. Without descending to blustering tactics, he was able to expose falsehood. He had a keen legal mind, an analytical mind and a wide knowledge of the different systems of law administered in this country. He was one of those who believed that if the facts are right the law will come of itself.

He made a thorough study of his briefs before the Courts and of his files in the Attorney-General's Department. J.E.M. was a fast worker and he seemed to have the necessary information at his fingertips, whether it was substantive law, precedent or Departmental Regulations. He was often able to express a definite opinion without the usual investigation by a subordinate officer of the Attorney-General's Department. It was a treat to read his files, elegant language conveying precise thinking in the most beautiful handwriting seen by us juniors in the Record Room of the Attorney-General's Department. He was often able in a masterly fashion to whittle down or explain away at first sight what appeared an insurmountable difficulty in a case. He had also proved himself to be an outstanding teacher of Mathematics and the Law earlier in his life. He left a young family of six children, of whom two sons Ralph and Mahen died young. Of the living, two sons R.I. Obeysekere and Anil Obeysekere, are well-known President's Counsel. Anil is also Chairman of the Petroleum Corporation. His daughter, Mrs. Sriyani H.O. Pimanda, a lawyer herself, is Secretary to the Hatton National Bank and Director (Legal) of the Browns Group of Companies. His elder daughter, Valerie, worked in the Commonwealth Relations Office in London and is now living in retirement.

(The writer was Crown Counsel, 1948-1963, Secretary General of Parliament, 1963-1981 and Parliamentary Commissioner (Ombudsman) 1981-1991).