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Nadesan's Last Case
Paul Nallanayagam Trial, 1986

Excerpt from An Episode of Persecution - My Story by Paul Nallanayagam, 2001

"...During that period of time (early 1985)  as President of the Citizens’ Committee for National Harmony (C.C.N.H.) for Kalmunai, I did my best to get an urgent-impartial investigation to be conducted when a massacre of innocent Tamil youths was reported to me. I kept all the authorities informed including the President and the Minister of National Security. I also gave factual information to the International Media who were in constant touch with me because the organised elimination of the Tamils of Batticaloa by the Special Task Force arming the Muslims and giving them the leadership was in full swing at that time. 

As a result of my intervention I was arrested on the 22nd of May 1985 and incarcerated for 122 days. After I had been in solitary confinement for 61 days in the Slave Island Police Station, my wife consulted the C.C.N.H. Colombo and the President of the Methodist Conference and along with them met Mr. Nimal Senanayake P.C. President of the Lawyers` Association of Sri Lanka. He was shocked that I had not been produced before any Judge or Magistrate up to that time and immediately filed action in the Supreme Court for violation of my Fundamental Rights. 

This was heard promptly by a panel of three Judges and the verdict was given in my favour and I was granted compensation. Although the amount of the compensation was very much below the legal fees we paid our Counsel, we were still very happy that we had won the case against the government. 

Immediately after this, unable to stomach this humiliation, the Government indicted me on seven trumped up charges of spreading false rumours about the S.T.F, spreading lies to the public of Batticaloa and giving false information to the Foreign Media. When this happened, we were completely taken by surprise. The Fundamental Rights Action in the Supreme court was a matter of three hearings and it had cost Rs 60,000/=. The High Court action will entail several witnesses on both sides and could run into months and we did not have that kind of money to go through a Court Action of that magnitude. 

It was at this juncture my wife’s cousin, Mr. S.S. Nambihai, an Attormey, met a mutual friend Mr. Jack Kotelawala and asked him whether he could persuade Mr. S. Nadesan Q.C. to get back from retirement and take on my case. Jack came and met me at my brother-in-law’s house where I was living after I was released on bail and told me he will make an appointment with Mr. Nadesan and take me to meet him and discuss this suggestion. Mr. Nadesan heard me briefly and then he told me, 

“Nallanayagam, you go home and write out the story of your life along with all the details of these incidents in Batticaloa and get it neatly typed out and bring it to me as quickly as you can and we will take it up from there.”

What I refer to as “My Story” is what I wrote (in March 1986) to be given to Mr. S. Nadesan Q.C. popularly known as Senator Nadesan as he was in the Senate from its inception till it was wound up. 

Mr. Nadesan went through my story and contacted Jack Kotelawala immediately after and asked him to get at me and both of us should see him in his chambers A.S.A.P. This happened the next morning itself. I will give in Mr. Nadesan's own words what happened when we met. 

"Jack, Nallanayagam, please pull up two chairs and sit down. You know, Nallanayagam when Jack asked me to come out of retirement and take up your case; I was in two minds about it. Here I was 81 years old and the case of this magnitude will run into a minimum of five months even if the court gives top priority to our case. I will have to be on my feet for several hundred hours. So I was considering getting a younger but capable counsel to handle the case in court and I would brief them from behind the scene. I had two people in mind - Bala Tampoe or Desmond Fernando. 

After reading your story, my mind is made. You have put your life on the line for the Tamil youth of Batticaloa and if I don't come out and defend you to the hilt, I cannot live with myself. So I have decided that I will be your Senior Counsel and handle your case personally. You don't have to pay me a cent. However, I will choose a few Counsel to assist me and if any of them need to be compensated, you will have to be prepared to look after that. Also I am quite impressed with you and I need you also to be a non-legal assistant to be on call when I am preparing your case. It may even mean coming to my Chambers on a daily basis. I will get back to you in a day or two with my list of Counsel."

Jack and I left his chambers. The next day he gave the list of his chosen Counsels; they were J.C.T Kotelawala, Suriya Wickremasinghe, I.F. Xavier, M. Alagarajah, Ainsley Samarajiva and Nimalka Fernando. Every one of them said they were appearing without any fee or compensation. I know that five of them could afford this but M. Alagarajah was a very young Attorney and was recently married and his wife was expecting their first baby. So I told Alagarajah that I insist on paying his fee. So my legal expenditure on this was Alagarajah's fees and cost of obtaining photocopies of the daily proceedings of the trial - I had to obtain seven copies, one for each Counsel. 

The proceedings of the trial ran into 2075 pages and the Judgment ran into 82 pages. The trial commenced in the High Court No. I of Colombo on 17 March 1986 before Mr. Justice K. Viknarjah and concluded on 7 July 1986 after 49 days of hearing with double sessions. Usually High Court has only one session but considering the age of the Senior Counsel for the defence and the accused being a foreigner, they decided to have double sessions.

Sunil de Silva, Additional Solicitor General with Nihara Rodrigo, State Counsel, prosecuted. S. Nadesan Q.C. with the six assistants mentioned earlier appeared for the defence. Judgment acquitting me on all charges was delivered on 17 July 1986.

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Report on Judgment of High Court from Sri Lanka Sun, 18 July 1986

"Paul Nallanayagam, the President of the Kalmunai Citizens Committee, was yesterday acquitted of the charges against him by the High Court of Colombo after a widely publicised 48 day trial. He had been indicted on seven counts under the Emergency Regulations. The charge sheet alleged that between April 1 and May 22, 1985 at Kalmunai he conspired to discredit and bring disrepute to the government of Sri Lanka by speaking false rumours.

From Sri Lanka Daily News, 30 April 1986  "...The prosecution evidence did not establish even the semblance of a case against the accused, Mr.S.Nadesan Q.C. Counsel for Mr.Nallanayagam, submitted in court yesterday.. At the outset, Mr.Nadesan referred to the International Covenant on Civil and Political Rights. 'We are one human family. Each violation of a human right is a threat to the welfare and dignity of the entire human family. If  there was a violation of human rights in Sri Lanka, it was not an internal matter of interest to Sri Lanka alone. The right of a citizen or a human rights organisation to bring to the notice of the world that there was a serious violation of human rights was not prohibited by any provision in the Emergency Regulations."

In a 166 page judgement, High Court Judge K.Viknarajah said the crux of the charges in counts 2 and 5 was that Mr.Nallanayagam had implicated Special Task Force ( S.T.F)  officers by saying that they had helped the Muslims to commit arson and cause damage to the village of Karaitivu. It was common ground that the Muslims attacked the village of Karaitivu and caused serious damage to persons and property. Although the charges were that the accused had falsely implicated the S.T.F. no member of the S.T.F. gave evidence in this case. The Judge held that the allegation that S.T.F. officers assisted the Muslims on Karaitivu was not a rumour.

The Judge said that in the absence of any explanation from the S.T.F. officers, on the evidence in the case he held the allegation that the S.T.F. were involved in the incident at Karaitivu was more probable than not. In view of the findings, it was not necessary to go into the question whether such a statement caused public alarm or public disorder and he therefore acquitted the accused on counts 2 and 5.

Referring to counts 4 and 7, the Judge said that the accused's position was that he did not implicate the S.T.F. officers. He only conveyed the information given by the parents and wanted an inquiry. The Judge held that the charges in count 4 and 7 had not been established beyond reasonable doubt.

Regarding count 1, the Judge said that he did not think that the accused was engaged in exciting feelings of disaffection or hatred or contempt of the government of Sri Lanka because it was to the government the accused had applied for an inquiry.

The charge was that the accused conspired with others in committing the offence of sedition. There was no evidence at all that there was any agreement between the accused and any others to commit the offence of sedition. Therefore the accused was not guilt to count 1 of the indictment.

Duties of a Citizens Committee official were responsible and onerous, especially in the present context of events. They were the only persons to whom innocent citizens could go for redress because members of parliament were more often in Colombo than in their constituencies. In the discharge of their duties, sometimes they were a source of embarrassment to the authorities, the Judge observed...

According to the evidence... the accused was given the chance of escaping the ordeal of being in detention and going through a trial if the accused retracted the information he gave by saying that the information was based on false premises. But the accused did not want to resort to these devices because it was against his conscience. If he had no scruples, he could have made a statement that the information he gave was based on false premises and he would not have faced the ordeal of going through this protracted trial. This conduct of accused assisted the court in assessing the evidence of the accused in its correct perspective. I find the accused not guilty of the charges in the indictment and I acquit him" 

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