22nd June 1997

Hulftsdorp Hill

By Mudliyar

Commissions and omissions behind the detention

Coop up Cooray

Since his arrival in Sri Lanka from virtual exile on the April 29 this year, the one person who drew the undivided attention of the media was Bulathsinghalage Sirisena Cooray. Even the massive onslaught and the highly successful Jaya Sikurui Operation against the LTTE terrorists or the long awaited cabinet reshuffle or the charisma of Chandirka Banda–ranaike, did not hold the attention of the public like Mr. Cooray did.

As soon as he passed through the Katunayake Airport without being arrested despite a warrant being issued by the Athulathmudali Commission, he created much conjecture in the minds of the politically active people of the country. Rumours had that Mr. Cooray had entered into a contract with the President and that the Government was interested in his arrival, and had given him an undertaking that he would not be arrested or prosecuted. Media headlines questioned how Mr. Cooray was permitted to come to his residence when there was an international warrant out for his arrest. From that time no one drew as much attention as much as Mr. Cooray and after the arrest of Mr. Cooray on June 16 and his detention at Keppetipola Mawatha, rumour mongers have been working overtime to carry on campaigns against Mr. Cooray, the Government and UNP leader Ranil Wickremesinghe.

Many people wrote as if they were convinced that even the arrest of Mr. Cooray had been engineered by Mr. Cooray himself. These rumours were not too different from the rumours that were afloat, and flaunted by tabloids that Mr. Premadasa waved a hanky and instructed "Babu" to blast a bomb and the calculation misfired and Mr. Premadasa was killed. This time the rumour mongers had been actively engaged in driving a wedge between the supporters of the UNP and the Premadasa loyalists throughout the country.

Others thought and insisted that Mr. Cooray had been arrested on a secret deal between Chandrika Kumaratunga and Ranil Wickremesinghe to deprive Mr. Cooray from becoming a major political force in this country. The Government has so far not come out with any plausible explanation as to why Mr. Cooray was arrested. The strangest excuse was given by Anuruddha Ratwatte that he was arrested for his own safety and the safety of the country.

Immediately the rumour mongers invented stories that Ranil Wickremesinghe or his supporters were trying to kill Mr. Cooray. The others who were more sensible thought that this was a ploy adopted by the Government when they heard reports from various secret agencies that there was support right throughout the country for the membership drive of the Premadasa Centre. The reports indicated that from the Badulla District alone more than 4,000 estate labourers wanted to join the movement and more than thousand were to attend this meeting.

The real shivers that went down the spines of the Government was when it was known that more than 2,500 Buddhist priests from all over the country would attend this ceremony at the Sugathadasa Stadium. The UNP in the opposition and the PA in office for the past two and half years were naturally watchful of one individual is able to muster support in the country in less than two months.

From the time this Government came to office it had one enemy whom it vilified, castigated and ridiculed to the utmost. He was not J.R. Jayewardene who deprived Sirima Bandaranaike of her civic rights. It was R. Premadasa who came from the grassroots and proved to be the most dynamic President this country had ever had.

The Government tried every possible means, legal and extra legal, to vilify the name of Mr. Premadasa. For some, Mr. Premadasa was a villain and it was a misfortune that he ever became President. But for others he was the only politician who lived to uplift the masses of this country.

S. W. R. D. Banda––ranaike became the champion of the common man. But Mr. Premadasa went further; he was the very live wire of the poorest of the poor. A class which even Karl Marx did not write or think about was found by Mr. Premadasa, a class of people who were not peasants or labourers: they were people who did not have any job or shelter, and Premadasa called them "Nethi Beri Aya."

As Shakespeare said, the opponents who did not have any philosophy to oppose the policies of Premadasa, used methods to inter the good, he did with the bones and propagate the alleged evil he committed.

When the Vijaya Kuma–ratunga Commission was appointed the govt had hoped it would connect Mr. Premadasa directly with the assassination of Vijaya Kuma–ratunga. In an unprecedented move, the President, long before the commission gave its report, made a statement to the Indian press that she knew that Mr. Premadasa was involved in the murder of Mr. Kumaratunga. It is thought in legal circles that the President may not have been happy with the findings of the commission report, which did not, as expected by her, directly involve Mr. Premadasa with the killing of Mr. Kumaratunga. The President took a number of months to announce it, and announced it just before the local elections.

Similarly the Lalith Athulathmudali and Kobbekaduwa Commissions gave wide publicity to the evidence of witnesses who directly or indirectly involved President Premadasa or his most trusted lieutenant B. Sirisena Cooray with any misdeed. The campaign to vilify Mr. Premadasa's name virtually boomeranged on the Government. People are increasingly comparing the good of Mr. Premadasa and are beginning to forget the bad of Premadasa.

Let us now find out whether a warrant in fact existed when Mr. Cooray arrived in Sri Lanka on April 29. On July 12 last year the Athulathmudali Commission issued a letter to Mr. Cooray saying that he was a person whose conduct should be the subject of the inquiry as set out in the terms of the warrant ( Document that established the Commission).

When a person who is termed as a concerned person under the provisions of the Special Presidential Commissions Act, he has the freedom to make an appearance through an attorney and request the commission to cross-examine witnesses who had given evidence against him. He cannot be compelled to do it and he can ignore the right given to him, i.e. participate at the Commission. Section 16 of the Special Presidential Commission of Inquiry Act states that a person whose conduct becomes the subject of inquiry and in the opinion of the commission in any way implicated or concerned in the matter under inquiry shall be represented by one or more Attorneys-at-Law.

When the Commission decided that Mr. Cooray was a person concerned in the matter under inquiry he was abroad.

The commission issued similar letters to a number of persons other than Mr. Cooray. The commission did not compel them to appear and defend themselves. Only one of those persons so concerned instructed an attorney to defend himself.

Commissions cannot compel a person who is concerned to appear. Nor can it compel him to participate in the proceedings. Under the normal law of the land evidence must be led only in the presence of an accused. If the accused is not present, the courts can issue a warrant for his arrest. But there is no provision under the Special Presidential Commission of Inquiry Act for the arrest of any person. So the fact that the Special Presidential Commission of Inquiry issued a warrant for the arrest of Mr. Cooray is true. The lawyers of Mr. Cooray consisting of persons like K.N. Choksy, PC, Faiz Mustapha, PC and Desmond Fernando PC were of the view that the commission had exceeded its authority by issuing a warrant against Mr. Cooray. Nonetheless on January 9 this year as Mr. Cooray did not appear before the commission and as he was abroad, and was represented by his attorneys, the Commission issued a warrant for his arrest.

What is most interesting is that the determination of the commission that was made on January 18 by Commission Chairman Tissa Dias Bandaranaike and Commissioner Edirisuruiya does not have in its findings despite the absence of Mr. Cooray any reference to a warrant being issued on him. On January 18, the commission made an order. It found Mr. Cooray guilty of the offence of contempt against, or in disrespect of the authority of the commission.

But lawyers who appeared for Mr. Cooray refer to Sec 12 sub section 2 which states "where the commission determines that a person has committed any offence of contempt under sub section 1 (failure to obey summons to give evidence) the commission may cause its secretary to transmit to the Supreme Court a certificate setting out such determination.

Up to now there is no information that the Secretary has submitted to the Supreme Court the determination on the failure of Mr. Cooray to appear before the commission.

I would like to refer to the submission made by counsel for Mr. Cooray to the commission: "There is no provision in the Special Presidential Commissions of Inquiry Act to summon or compel the attendance of a person who come within any of the categories enumerated under Section 16. As such, the issue of a warrant ordering or apprehension and production is not countenanced by any identifiable provision contained in the said Act".

The issue of the warrant, whether it was legal or illegal ended on January 18 when the commission found its determination on Mr. Cooray.

Therefore there was no warrant pending.

On or about this time the newspapers carried a story that the CID had contacted the Interpol for the arrest and extradition of Mr. Cooray. This was known as a plant in journalistic circles, i.e. when a newspaper carries a false story given to them by some person on the basis that it is true, and it is difficult to verify the truth or otherwise of the story. As soon as this news item appeared a very respectable senior Deputy Solicitor General was contacted by the lawyers of Mr. Cooray and he discounted the possibility and said that the newspaper report was mere rubbish. "The CID normally contacts us before trying to use the Interpol to arrest and extradite a person. This Department will never act irresponsibly when there is absolutely no evidence against Mr. Cooray."

The DSG asked, "Why should we then move for the issuance of an international warrant?" The Interpol denied that there was even an application made by the CID or anyone in authority. Mr. Cooray has most probably been correctly advised on these matters.

When he came to Sri Lanka there was no question of his arrest as there was no warrant against him. All the suspects in the Lalith Athulathmudali case have been released on bail, after the Attorney General's Department went through the evidence led before the Commission before it consented for bail.

There was the evidence of those including self confessed perjurers against the suspects and overwhelming evidence of experts. The evidence of Dr. J.B. De Alwis the J.M.O. and the statements made by Mr. Mendis the Deputy Government Analyst of the Government Analyst's Department and the Reports of the experts of New Scotland Yard cut across the proposition of the witnesses called by the Commission.

The govt., to sustain the detention, could say the most improbable things, to create speculation that he is involved in many activities.

The Government having taken him into custody is unable if this was a motive, to prevent the holding of the Premadasa commemoration meeting on June 29 or draw a rift between the UNP leadership and Mr. Cooray. The UNP leadership has agreed to give the fullest support for the event. Ranil Wickremesinghe will deliver the keynote address.

The Government, has had to bring in the most offensive draconian legislation, the Emergency Regulations, to keep him in detention.

We in Sri Lanka have five star hotels that have toilets that do not flush properly, five star democracies where the main political opponents are detained under emergency regulations, and five star detention camps where overgrown weeds creep into the toilets, without any furniture, and water trickling from a pipe, and electricity not functional twenty four hours of the day.

Let us hope that in the future no government would ever resort to the use of emergency regulations to detain political opponents or attempt to use the Special Presidential Commission Act to vilify political opponents. The UNP must openly declare that they would re-enact the emergency regulations to prevent the present situation and repeal the Special Presidential Commissions Act fathered by J. R. Jayewardene.

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