24th August 1997


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Cooray: UNP, not for me

By Roshan Peiris

Former UNP strongman and strategist Sirisena Cooray sick after two months of detention but still calm and strong-willed says he cannot and will not join the UNP again because of infighting and mismanagement of the party.

Clad in white shirt and blue sarong with a plaster on his right elbow, Mr. Cooray spoke to “The Sunday Times’ about his horrible 60 days in detention and his plans, especially for the Premadasa Centre.

Mr. Cooray had just undergone a scan at the Asiri Hospital for a lung problem but was cool and composed as he spoke.


Q : What were the conditions at the C-38, Keppetipola flats where you were detained?

A : I was taken to what looked like a haunted house by the police, who had to break open the gate. It was full of cobwebs. There was not even a chair, let alone a bed. I had to get all my meals from home.

Q : In your opinion what were the reasons for your detention. Did you meet Soththi Upali or his gang to discuss any plan to kill the President as the CID says? Or was your detention a political vendetta.

A : Ask the President or the Defence Secretary why I was detained. I never met Soththi Upali or his gang. He was in remand. So how could I meet him? After 1994, when I quit as General Secretary of the UNP, I never met Soththi Upali. He is certainly not an associate of mine but he is a member of the UNP.

Q : On TNL after your release you mentioned that you were sandwiched between the PA and the UNP. What made you say that?

A : I have repeatedly said I am not a member of any political party now. Despite this, the PA, thought I was in the UNP and the UNP thought I was helping the PA, politically.

Q : There was speculation that you were in contact with President Kumaratunga?

A : I know her and I am quite friendly with her or had been. But I have not met her for some time.

Q : Are you building the Premadasa Centre as a political power base?

A : No. I am not seeking political mileage from the Premadasa Centre. I don’t see why we should not propagate the good work of the slain President - especially housing. Even those who do not like him cannot deny his work in areas such as housing, poverty alleviation and village re-awakening.

Q : Will it be possible for you to get together with UNP leader Ranil Wickremesinghe and build up the party?

A : I won’t enter the mainstream of politics at a time when there is so much infighting within the party. I cannot work in such a set -up.

Q : You are acknowledged as a brilliant political strategist. It is hard to believe you will give up all that and just remain in the background. Don’t you have a responsibility towards your party?

A : What I am stressing is that the political climate is not conducive for my kind of politics. How can I give my best to the party when even my social work has been misinterpreted.

I have been kept in custody and for what? Besides me, see the suffering inflicted on my poor wife and children - the mental agony and trauma they were made to undergo. I am bitter about that.

As for my responsibility towards the party, I can work for an organisation, only if it is well managed. At present, I don’t see any opportunity to serve the UNP as I would like to.

Q : When you were in detention there were allegations that a senior UNP minister - the innuendo was obvious - had ordered police to quickly clean the blood-splattered area where Mr. Premadasa had been assassinated in May 1993. Reports say that the probe on Mr. Premadasa’s death is to be reopened.

A : Why the deuce should I give such an order. That is police business. I was not even the Mayor of Colombo. Anyway why wait for four years and then think of looking into his assassination. About washing the place, I don’t know anything about who gave the orders.

Power is accountable, even under emergency

By Kishali Pinto Jayawardana
Judicial progressiveness in Cooray fundamental rights case

As crackers exploded in Hulftsdorp min utes after the Supreme Court delivered its verdict, and supporters of former UNP strongman Sirisena Cooray hailed him as a hero in a happy daze of political amnesia, the Court predictably became the centre of a storm. Not much time passed before President Chandrika Kumaratunga made a caustic reference to posters on the release coming up in Colombo prior to the judgment, in an echo of previous political rhetoric against certain Supreme Court judges with whom she was annoyed at that time.

But the President need not have been so hasty. In taking Tuesday’s judgment personally against the government, she was again committing a cardinal mistake that ignored recent thinking of the Sri Lankan higher judiciary as regards protection of fundamental rights in times of emergency. Last week’s decision was only an expected climaxing of a judicial aggressiveness that in fact had begun some time before the PA assumed office.

For some time, the Court had been drawing away from the attitude that acts of the executive cannot be called to order under Emergency Regulations. The change had in fact been taking place during the latter part of UNP rule, and the Defence Secretary of the day had often been reprimanded for unreasonable action.

This change from earlier judicial conservatism had taken place slowly but surely. Reluctance to question the executive on his reasons for ordering a person to be arrested under emergency had been based on the reasoning that individual freedoms have, in times of public danger, to be restricted when the community itself is in jeopardy, when the foundations of organized government are threatened, and its existence as a constitutional state is imperilled. The Court, faced with a breakdown of law and order in the country at that time, chose to retreat, going so far as to state that “Fundamental Rights take a back seat to the extent that Emergency Regulations take the front seat. There is no room for both in the front seat.” It was argued that restrictions on the powers of police officers will inhibit them from performing their duties properly.

Freedom from arbitrary arrest and detention was made subject to ER, and persons arrested on suspicion that they could commit an offence, could not expect to be told the reasons for their arrest. However, as emergency became the order of the day, the government itself relaxed some of its more draconian measures, and the Court began to require the Defence Secretary to do more than merely plead national security as reason for arrest. Where an arrest was clearly unreasonable, the Court released the victim, on the basis that there had been lack of sufficient material for the detention, or that the Defence Secretary had misdirected himself in law. The Supreme Court went on to lay down the principle that the discretion given to the Defence Secretary is not unfettered. It must be exercised reasonably, in good faith and on proper grounds.

Last Tuesday, Bulathsinhalage Sirisena Cooray was luckier than those unfortunates who had been arrested during the darker days of UNP rule. With sufficient material behind it to carry the right to freedom from illegal arrest and detention to a spectacular finale, the Supreme Court laid down definite principles on the accountability of the executive under emergency.

Defence Secretary Chandrananda De Silva was held to have misdirected himself in authorizing the detention of Mr. Cooray by relying on misleading advice given to him by senior police officers. Mr. Cooray’s rights had been further violated by his not having been told the reasons for his arrest and for not having been brought before a competent court as soon as possible.

“The power of the Secretary given by Emergency Regulations 17 concerns the physical liberty of persons, including those who have not yet, nor ever committed an offence. It is therefore an exceedingly great power, indeed an awesome power that must be exercised with a corresponding degree of responsibility. There is public respect for the independence and impartiality of the Secretary, albeit tinged with latent reverential fear. The Secretary must fulfil public expectations and be independent and impartial,” cautioned Justice Amerasinghe delivering the judgment.

“ In the matter before us, the Secretary in my view abdicated his authority and signed the detention order mechanically.......his decision was not reasonable in the sense that it was not supported with good reasons, and therefore it was not a decision that a reasonable person might have reasonably reached. His decision was not only wrong, but in my view unreasonably wrong” he added

The Bench also comprised Asoka De Z Gunewardene J. and Wijetunge J. The Supreme Court awarded Mr. Cooray an unprecedented Rs. 200,000 as compensation and costs.

The former UNP Cabinet Minister had been arrested under ER17 which relates to preventive detention. In other words, he had been arrested not because he had done anything, but on account of what he might do if left free.

Mr. Cooray had been arrested on the basis of three reports submitted to the Defence Secretary by the IGP, the Director of the National Intelligence Bureau and the CID chief. All three reports mentioned Mr. Cooray as being involved in a plot to assassinate or physically harm the President, and cause unrest in the country. Mr. Cooray’s alleged collaborators however remained in doubt. While the first report alleged that well known underworld figure Soththi Upali (at present in remand) was a close associate of Mr. Cooray, and that the latter had discussed with members of Soththi Upali’s group about assassinating the President, the second report named equally well known figures Malwatte Some and Sudu Mahattaya as collaborators, with no reference to Soththi Upali. The CID chief had meanwhile in the third report merely mentioned that he had received reliable intelligence that Mr. Cooray had sought assistance of certain members of a group to carry out his task. Upon the Defence Secretary requesting further information, the CID chief had informed him that according to information received, Soththi Upali had purchased lands close to the Horagolla Walauwa in part of an elaborate conspiracy to murder the President, and that a connection had been established between Soththi Upali and Mr. Cooray.

Mr. Cooray had denied all these allegations before court.

The Supreme Court pointed out that mere assertions by police intelligence would not do. What was the evidence that Soththi Upali was a close associate of Sirisena Cooray, and that discussions had been held about assassinating the President? If lands were allegedly purchased near Horagolla, when did this alleged purchase take place? Mr. Cooray had been questioned after arrest as to whether he had allotted any land to Soththi Upali when Minister of Housing and Construction, and he had replied that he had no recollection of having done so. The Court drew attention to the fact that even if land had been so allotted, it could not ever have been evidence of a conspiracy to assassinate the President because she had not even been elected to office at that time.

On this evidence, could the Defence Secretary have been satisfied that it was necessary to arrest Mr. Cooray? The Supreme Court thought not.

“The police had their suspicions and hoped that some evidence might turn up to make their suspicions reasonable. However, vague or general suspicions and the fervent hope or even confident assumption that something might eventually turn up to provide a reasonable ground for arrest will not do,” observed the Supreme Court.

The principle of personal freedom that every man is presumed innocent until he is proven guilty applies also to the police function of arrest. There must be a reasonable suspicion for arrest. And the decision of the Secretary to arrest a person does not become reasonable merely because the sources of his information are senior police officers. The Defence Secretary cannot think or sincerely believe that Mr. Cooray ought to have been arrested, he should have been personally satisfied on reasonable grounds that an arrest had to be made.

“ The Court appreciates the difficulties inherent in the investigation and prosecution of certain offences such as terrorist crimes or conspiracies to assassinate political leaders, and the need for acting quickly where national security or public order is involved. Yet, the exigencies of dealing with such crimes cannot justify switching the notion of reasonableness to the point where the essence of the safeguard secured by the Constitution may be abrogated.” the Court said.

A factor which further surprised the Supreme Court was that even though the allegation against Mr. Cooray was that he had planned to assassinate the President in the near future, almost one week had passed after his arrest before he was questioned on this alleged conspiracy. In fact, it was only after reading the Sunday Times lead story of 22nd of June that he had learned of this alleged plot, and raised the matter with his captors. Until that time, nobody had interrogated him on this alleged conspiracy. The Sunday Times story had reported the CID chief as saying that there is a little bit of evidence against Mr. Cooray, and that they are continuing investigations.

“ If the report in The Sunday Times that Mr. Sumanasekera (DIG, CID) had said that there was no more than a little bit of evidence is accurate, how does one reconcile that statement with what Mr. Sumanasekera reported to the Secretary? He has not filed an affidavit contradicting the accuracy of The Sunday Times report which was an item of evidence in this case.” the Court stated

Meanwhile, a further ground of violation was that Mr. Cooray had not been given the reasons for arrest at time of arrest. Quoting Indian law and the International Covenant on Civil and Political Rights, the Supreme Court pointed out that this was one of the most fundamental principles that every civilized country follows. The Court disagreed with previous judicial pronouncements that had held that there was no duty to give reasons for arrest to persons taken in on preventive detention.

“The suspect must be given the reasons, that is all the material and pertinent facts and particulars that went up to make the mind of the Secretary, and not merely the inferences arrived at,” the Court said.

The Court dismissed the argument that ER overshadows the fundamental rights guaranteed in the Constitution, and stressed that constitutional rights to freedom from arbitrary arrest and detention prevail over the Public Security Ordinance.

Dealing with Article 13 (2) which specifies that any person arrested ought to be brought before a judge of the nearest competent court, the Supreme Court said detention of Mr. Cooray from June 16 without this procedure being so brought was also a violation of his fundamental rights. In an astoundingly bold interpretation of the law, the Supreme Court held that Sections 36 and 37 of the Criminal Procedure Code apply to arrests under ER17. Section 36 specifies that a person arrested without a warrant shall be taken before a Magistrate without unnecessary delay, and Section 37 states that such a person shall not be detained for a longer period than is reasonable in the circumstances of the case, and such period shall not exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate.

The Court cited from the European Convention for the Protection of Human Rights and Fundamental Freedoms and from decisions of the European Court as persuasive authority on the importance of the right to be brought before a judge.

Last Tuesday’s decision could be justly hailed as a coming of age of fundamental rights jurisprudence in the country. Apart from the strong principles that the Supreme Court laid down on the supremacy of the Constitution, the judgement is also remarkable for the extensive manner in which it looks at international law for reference. It serves as salutary reading for those insular souls who still unashamedly argue that we should not take account of what is happening in the rest of the world.

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