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The Sunday TimesNews/Comment

06th, April 1997



Bandaranayake vs. Yapa

'Many wrong things have been done'

By Mudliyar

In August 1992, Lt. General Denzil Kobbekaduwa and Maj. Gen. Wijaya Wimalaratna and other soldiers were killed in an explosion in Jaffna. Lt. Gen. Kobbekaduwa was the most loved officer in Sri Lanka. Though it was widely believed that they died as a result of the vehicle being driven over a pressure mine, there was speculation that they died as a result of a bomb being placed inside the vehicle.

Soon after the death the government appointed a one man commission comprising Justice Ismail to investigate the case. Later, as the widow of General Kobbekaduwa requested a commission, an international commission comprising three renowned and respected judges from various countries was appointed.

Additional Solicitor General Upawansa Yapa was appointed to assist the commission. There were other lawyers watching the interest of various parties, including that of the late Maj. General Wijaya Wimalaratna.

The last sittings were held in London. This became necessary as there was an opinion expressed by an expert by looking at the photographs of the crater and the jeep that the bomb was fixed inside the vehicle. It was known that some of those who opposed the government and others who left the government wanted to topple it.

One way to do so was to accuse former President Premadasa of the murder of the generals. The hurriedly-arranged news conferences, and the exhibition of the photographs and the opinions expressed by a foreign expert were sufficient to brainwash the people to drive in any story which they wanted to believe.

The international commission of inquiry released the report, which did not help the rumours which were circulating. President Chandrika Kumaratunga, by warrant under her seal appointed Tissa Dias Bandaranayake, Justice D. P. S. Gunasekera and Gamini Ameratunga, High Court Judge as Commissioners to inquire into the death of Lt. General Kobbekaduwa.

Tissa Dias Bandaranayake, the son of Copleston Dias Bandaranayake is a relative of the President Kumaratunga and was the Chairman of the Commission.

During the sittings, and some time before or soon after Rohini Hathurusinghe gave evidence accusing Maj. General Wimalaratna and Brigadier Ananda Weerasekera of the murder or conspiracy to murder Lt. General Kobbekaduwa the two judges Justice D. P. S. Gunasekera and Gamini Ameratunga resigned from the commission.

The circumstances under which these resignations took place are still not clear. It is often said about Justice Gunasekera that he is an uncut diamond. When you look at him, the first impression is that he is a tough judge. He is like a priceless gem. The Bar admires him and adores him as a fine gentleman. This is in no way to say that the other judges are not of the same calibre.

When a judge resigns or is asked to resign there is bound to be some speculation in the legal fraternity as to why he resigned or was asked to resign. So when Justice D. P. S. Gunasekera and Gamini Ameratunga resigned, the legal fraternity felt that some thing was rotten in the state of Denmark.

In February, 1995 Justice Gunasekera wrote to the President requesting that he be relieved of his duties as a commissioner in the Kobbekaduwa and Athulathmudali Commissions. Then something strange happened. At a sitting of the commission without Justice Gunasekera, the secretary of the commission read a statement purportedly from the commission, that it was not proper for Justice Gunasekera to sit in the commission as it was found that Justice Gunasekera was a class mate of Lt. General Kobbekaduwa. Gamini Ameratunga was so disturbed by this statement that he publicly declared that the statement was untrue and walked out of the commission, and later resigned from it. It was his contention that it was known to many that Justice Gunasekera was a class mate of Lt. General Kobbekaduwa. None of the lawyers who appeared for the interested parties thought that the mere fact that Justice Gunasekera was a class mate of Lt. General Kobbekaduwa was any disqualification.

Soon after Rohini Hathurusinghe gave evidence, there was pandemonium in and around the city and a statue of General Wimalaratna a revered national hero who gave his life fighting the LTTE, was demolished. Thousands passed the statue with the head of the general hanging downwards as if cursing the traitors who brought about this tragedy.

The drama did not end there. Soon after the resignation of these two judges, a search warrant was issued, and the house of another judge of the Court of Appeal was searched by the police. I believe that this was the first time in the history of this country that the residence of a superior judge was searched by the police on a search warrant which should have been issued by a Magistrate. This was not the residence of Justice D. P. S. Gunasekera but of a judge who lives in close proximity to Justice D. P. S. Gunasekera's residence.

The Kobbekaduwa drama did not end there. Now it was the turn for Rohini Hathurusinghe to call a press conference. There she made the most startling revelations, of which one fact was that she was pregnant. She said that as soon as the baby was born she would reveal who the father of the child was.

The final chapter of the Kobbekaduwa drama unfolded a few days ago when Upawansa Yapa, the son of Punchi Banda Yapa (Korale Mahathtaya of Badulla), and the Solicitor General of Sri Lanka, was called to give evidence before the commission. For the benefit and for the education of the general public we give the proceedings. Mr. Yapa being a Korale Mahathtaya's son and being educated at Nalanda College opted to give evidence in Sinahala. His mastery of the Sinhala language and the use of the most appropriate Sinhala terms might be difficult to translate into English. We have done our best to come close to it as far as possible.

Mrs. Thenuwara who was a pupil of Mr. Yapa was embarrassed and politely declined to ask questions from Mr. Yapa. So it was the Commissioner Bandaranayake who examined Mr. Yapa. On March 29, Mr. Yapa took his stand in the witness box at the Superior Courts Complex. Mr. Bandaranayake and Mr. G. W. Edirisuriya, High Court judge Matara, were the learned Commissioners. Mr. Liyanage Attorney-at-law watching the interest of Maj. General Wimalaratne was present.

Commissioner Bandaranayake: You were nominated by the Attorney-General to assist the International Commission?

Mr. Yapa: Yes.

Q: The Attorney-General was Mr. Tilak Marapana

A: Yes.

Q: A foreign lawyer if he is to appear in our Courts has first to be attached to our Bar.

A: Yes. There is a rule to that effect.

Q: How was it possible to have an International Commission appointed. Could they have come to Sri Lanka to sit in a commission .

A: The appointment was made by the president and I had no hand in it.

Q: Were you not consulted?

A: No.

Q: Was the Attorney-General consulted?

A: I think he was

Q: Read section 2 of the Commissions of Inquiry Act. Now in terms of these provisions could the International Commission have conducted proceedings?

A: I must say with great respect that I am not competent and I am not prepared to interpret the law here when I am in the witness box. The interpretation of the statute is not for me.

Q: Did you not look into these notes?

A: No. That was not my function. I was appointed to assist the

commission. The commission wanted me to lead evidence of witnesses who were called by the commission. The commission questioned witnesses to have matters clarified.

Q: One Serasinghe is supposed to have collected some pieces from the crater and then have subsequently handed them to the International Committee.

A: Yes. I can remember some witness saying so.

Q: The pieces are supposed to have been given to the Government Analyst.

A: May be.

Q. There is a discrepancy about the date when these were handed over. The date given by Mr. Ismail does not appear to be correct.

A: That will have to be asked from Justice Ismail. I cannot answer that question.

Q: What is this dress you are wearing. As Solicitor General should you not wear the black coat.

A: Is there a problem about my dress. I am dressed appropriately to give evidence. (Mr. Yapa gave evidence wearing safari suit.)

Q: What is it that you are wearing. It is like a banian.

A: (Mr. Yapa) It is not so. This is an extra special dress. I was asked about wearing the black coat. The black coat belongs to a noble profession. If I were to wear the black coat I will be there ( pointing at the bar table). Not here. I do not wish to be disrespectful to my profession. I stress that I am dressed to suit the occasion.

Q: That is the reason. Did you take any negatives from a witness .

A: No. I did not.

Q: The International Commission went to London to examine witnesses.

A: Yes.

Q: Who and who went to London? How many lawyers'?

A: Myself, Mr. A. R. C. Perera who was my junior, Mr. J. B. L. de Silva,, Mr. Sarath Liyanage, and Mr. Kalinga Indatissa.

Q: There was a witness from the Land Rover Company who gave evidence.

A: Yes. In addition to the expert who was summoned at the request of Mr. Abesuriya.

Q: That witness had spoken of a particular kind of vehicle and the Government Analyst had spoken of some other vehicle.

A: I am not able to give an answer.

Q: In the Attorney-General's Department, when notes of an investigation are submitted by the Police Department, do you not examine them and give instructions to the Police to record further statements, and also send productions for examination - give instructions like that?

A: Yes. We do.

Q: Then why didn't you do so at this commission.

A: I must explain a little here. A Commission of Inquiry is a fact finding commission. There is no prosecution there. I was not appearing for the prosecution as if in trial before a jury or by a judge. In fact I was informed of my task by the Commissioners. Through habit, I once called myself the lawyer for the prosecution and the Commissioners were quick to remind me that I was the lawyer for the Commission and that I was assisting them under their direction. There were other lawyers too who were representing interested parties.

Q: Everything has been done so quickly. Could they have attended to all this during this short time?

A: I cannot comment on that. That they did what they were asked to and submitted a report. They were experienced judges. I have not reason to be disrespectful to them even by word.

Mr. Liyanage the Lawyer representing the family of General Wimalaratne: Mr. Wyatt who gave evidence in London, did he not admit that he had come to a wrong conclusion from photographs.

Mr. Yapa: Yes. In fact he said that it was dangerous to come to conclusions from photographs.

Q: Did he not admit that Mr. Gunatilake the Senior Assistant Government Analyst was more qualified than him.

A: Yes. In fact he said ultimately that if he had the material that Mr. Gunatilake discovered in his examination he too would have come to the conclusion that the explosion was the result of a land mine. I must say this. There was an attempt made to undervalue the report prepared by Mr. Gunatilake who had taken a lot of trouble and had done a thorough scientific examination. I resisted the attempt made to criticise the expertise of Mr. Gunatilake.

Mr. Yapa: With your permission may I have a clarification on one matter.

Commissioner Bandaranayake: Yes

Mr. Yapa: In March, last year, on the orders of the Commission my passport was impounded. It was returned to me about two weeks thereafter. Up to date I do not know why this was done. Even the most inferior court when it makes an Order gives its reasons. I should like to know why.

Commissioner Bandaranayake: The President of the Bar Association made an application for the return of the passport. That is why it was released.

Mr. Yapa: With great respect the reasons are not clear to me still. I would like to know the reasons for impounding my passport. I was virtually branded a criminal. It was all over the newspapers.

Commissioner Bandaranayake: That is what you did. You gave it publicity

Mr. Yapa: I did not. I was asked by the press whether my passport had been impounded and I said yes. That is about all. With great respect. What I am interested in is to find out the reasons.

Commissioner Bandaranayake: Many wrong things had been done. Many people started talking about it.

Mr. Yapa: I wish to inform you that I will be taking steps in this regard in the future.

So ended the final chapter of the Kobbekaduwa Commission. The report by the Commissioners will be handed over to the President before the end of April. The tragedy of our times is that after having served the nation with great dedication and love and at great personal sacrifice and having made the supreme sacrifice General Wimalaratne's good name have to be protected, and lawyers had to appear to do so. What ever falsehood people utter the truth will survive at the end.

The Solicitor General has stated in the commission that he will be taking steps in the future in this regard. These steps will undoubtedly be legal steps to clear his good name.

It was only few days ago the President and the leader of the Opposition signed a virtual peace accord. I believe confrontational politics will soon end. Both parties representing the major community must know who their real enemies are. The real enemy is hidden in the Vavuniya and Mullaitivu jungles. This enemy has studied the weaknesses of the major community. When we are accusing each other of murdering our leaders, Prabhakaran is in full cry ever ready to crush us and establish Eelam, which will eventually be confederation of India, Mauritius,, Malaysia and Sri Lanka.

Continue to the News/Comment page 5 - * Draft constitution: a step forward, yet little headway, * Going the Yugoslav way - not quite, * M'membe's court nightmare begins now

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