28th September 1997

Cheers and praise for the BASL

By Mudliyar

On September 20, 1997, the Executive Committee of the Bar Association of Sri Lanka resolved to express its concern at the delay in the appointment of a Judge to the Supreme Court, consequent to the retirement of Mr. P. Ramanathan at the end of August, 1997, which retirement was known months ahead. The Executive Committee further resolved to request that the appointment be made without further delay.

Let us all raise a cheer in praise of the Executive Committee of the Bar Association of Sri Lanka. Even the ranks of Tuscany could scarce forbear to cheer the Bar for the haste with which the Executive Committee reacted to the delay by less than a month, to make an appointment to the Supreme Court. In the last two years when the Government ignored the promotion of Judges to the Court of Appeal from the High Court for several months, the Bar Association was in a deep slumber, not to be woken until some members brought a resolution challenging the appointment of an academic to the Supreme Court. Then the supporters of the Government those rustic and those urbane, who had donned the black coat, sang pelkavi at the Bar Association meeting discussing a resolution about the appointment, and was successful in disrupting the meeting. In gratitude to these wayfarers some of them were appointed to high places.

Even the present resolution of the Bar was muted by not urging the Government to respect the judgment of the majority of the Supreme Court which made reference to the appointments that would be made to this comment in the future by the Executive. The Chief Justice, as the traditions befitted him, would have recommended the most senior Judge of the Court of Appeal, D.P.S. Gunasekera, the President of the Court of Appeal to fill the void created by the retirement of Justice Ramanathan. Nonetheless the Bar woke from its deep slumber in passing this resolution it would have considered the gossip and the rumours prevalent at Hultsdorf, that the Government will not heed the obiterdicta of Shirani Bandaranaike's judgment, and would appoint a complete outsider and is in the process of hunting for a head who would be prepared to become the most obedient servant of the Executive and the Government, and would be an arbiter in favour of the most important proposal of the Government which is the political package.

Sirisena Cooray's judgment was a sensation in Sri Lanka. It is also publishedinternationally as a landmark case on human liberty and freedom. Recently one of the most respected Indian newspapers published the judgment and a comment was published in it lauding the principles enunciated in the judgment and referring to the infamous period of Mrs. Gandhi's emergency rule. Mrs. Gandhi used the emergency powers to subvert human rights and liberty. So it is necessary for us to dwell upon the judgment of Mr. Cooray again and remind ourselves of the importance of liberty and other freedoms protected and guaranteed by this Constitution and enforced to the letter by the Supreme Court, the final arbiter of our freedom.

It is important to note that the Government has in the recent past been strangely remiss on some matters concerning the interpretation of many statutes, and the Constitution. The Supreme Court has on occasion shown that the Government has acted without using or unable to use the basic principles needed for good Governance. The UNP was accused of the same misdemeanours but they did the very same thing with more maturity, guile and dexterity.

The judgment of the Supreme Court on the Fundamental Rights case had been delivered. Mr. Cooray had been released from custody. The judgment in the opinion of many scholars and jurists will find its due place as a landmark judgment in the cause of liberty and freedom of the individual from the tyranny of the State. I am informed that jurists from other countries are making inquiries about obtaining copies of the full text of the judgment. There is a group of young lawyers with their knowledge of computers who are trying to have a web page on the Internet on Human Rights Cases in Sri Lanka and the first case that would be included will be the judgment of Justice Amerasinghe.

The judgment is an indictment on the Police and the bureaucracy of this country. The judgment was such an exacting indictment on their actions that some media persons opined that if they had any moral potency left in them they should resign.

The theory of a grand conspiracy could have been hatched in order to obtain political mileage and overawe the public and the courts of this country. The thought of incarcerating Cooray till he becomes weak may have brought happiness to those who are in the government who knew this man's strength and was shaken by his action after he returned from self exile.

When the Secretary Defence wrote to the D.I.G. C.I.D. letter 1R1, the Supreme Court stated

"I should like to dispose of one matter immediately, The Secretary, in exercising his powers of arrest, should always act cautiously, for the liberty of one citizen is no less important than that of any other, whatever his station in life was, or expected to be"

The state depended upon the investigations of the C.I.D into the allegation of an elaborate conspiracy to assassinate the President to justify the detention of Cooray. The fact that 'Soththi Upali' had purchased some property near the ancestral home of the President was sought to give credence to this theory. In order to further confuse and confound the issue 4 confidential reports were placed before court. The contents of these reports were said to be highly confidential in nature that it was not possible for the Secretary Defence to make it public. It is normally contended that these reports if made public would impair the on going investigations into the conspiracy to assassinate the President. But the Supreme Court having perused these reports stated " Those reports do not materially add anything to the narration of their contents in the affidavit of the Secretary."

Can the order of the Secretary be questioned? Does he not wield absolute power under the regulations? Specially when the allegation is the most serious that could be brought against a person, that he conspired to kill the President? The Public Security Act and the Emergency regulations gave a discretion, absolute and unfettered, to the Secretary Defence to issue a detention order in order to safeguard the interest of the State. Is this position correct? The manner in which the government acted in this instance would only seem to show that it was using these regulations to detain political enemies. No one would have been safe if the courts interpreted the regulations in this manner.

The fact is that the courts have as far back as 1983 interpreted these section in order to ensure that fundamental rights of individuals are protected

"If a judgment requires, before it can be made, the existence of some facts,then although the evaluation of those facts is for the Secretary…alone, the court must inquire whether those, facts exist, and have been taken into account, whether the judgment has not been made upon other facts, which ought not to have been taken into account."

Justice Amerasinghe has dwelt upon the question of two reasonable persons acting reasonably but coming to opposite conclusions on the same set of facts. They have accepted the fact that not every reasonable exercise of judgment is right and every mistaken exercise of judgment is unreasonable. But quoting Lord Denning "When the Secretary" honestly takes a view of the facts or the law which could be reasonably be entertained, then his decision is not to be set aside simply because thereafter someone thinks that his view is wrong ." The courts have with much care taken into consideration that these are emergency regulations, and there are 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. But the whole process would be made of no effect if the (Secretary's) decision was afterwards to be conned over word by word, letter by letter, to see if he has misdirected himself. That cannot be right. And the existence of such crimes cannot justify switching the notion of reasonableness to the point where the essence of safeguard secured by Article 13 (1) of the Constitution may be abrogated"

"In this matter before us, the Secretary in my view abdicated his authority and mechanically signed the Detention Order. As, I have pointed out, the Secretary's decision was not reasonable in the sense that it was not supported with good reasons, and therefore it was not a decision which a reasonable person might have reasonably reached. His decision was not only wrong, but in my view unreasonably wrong. This happened because he did not satisfy himself and allowed himself to be misled."

It is the belief of all right-thinking people of this country that the judiciary will remain independent. It will not succumb to various multi-dimensional and multi-faceted threats, overtures and influences that any government in power may bring upon it to change its stance as the only protector of human rights from the tyranny of the Executive. The Executive in some circumstances may do its utmost to subjugate the power it has given to the courts by the people of this country. The people may be for or against the package but under the guise of introducing constitutional reforms, they will not permit removal of a single judge from the Supreme Court.

Nilabdeen vs Kauseelan

This column had earlier brought to the notice of the public, how the IGP, interdicted and/or sent on compulsory leave many police officers who had been accused of many heinous crimes, by witnesses at Commissions. Chief Inspector Nilabdeen and SI Jeyaratnam were accused of recording a confession of a Tamil youth, Pedurupillai Jebanesan alias Kauseelan to the effect that Kauseelan had assisted Raghunathan to kill Lalith Athulathmudali. The witnesses accused these police officers of striving to distort the truth and disgrace the findings of the commission. Some witnesses alluded to the fact that Chief Inspector Nilabdeen sold revolvers and pistols to Soththi Upali and his gang. It was only a few months before the interdiction, that the government promoted CI Nilabdeen and gave Nilabdeen and SI Jeyaratnam a reward for the discovery of a large cache of ammunition and explosives from terrorist suspects. If not for this discovery hundreds would have lost their lives and the loss of property would be around millions of rupees. It was an accepted fact that these two officers and ASP Wakishata were the top most sleuths attached to the police who would by just talking to a Tamil know whether he was a terrorist or not. The IGP had to reinstate them with back wages as the inquiry against these officers drew a blank, when they found as revealed by this column that the suspect had made similar statements to the CID, NIB and the SID. These officers suffered humiliation and mental agony for doing their job. But the truth survived at the end; and conquers all things.

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