12th October 1997

Commissions, according to Mangala

By Mudliyar

Mangala Samaraweera: taking the bull by its horns
The captain of Thawalama, and me dia man of the P.A. Government, Managla has been blessed with divine insight. On October 2, he told a news conference that "the interim report of the pseudo 'Sinhala' commission is highly partisan. It has produced a set of premeditated recommendations with a highly biased political agenda. A large number of witnesses were denied access to the commission, even their letters were not acknowledged. The Commission actually recorded the evidence of witnesses in a planned manner, so that through them the predetermined conclusions were brought forward again".

So according to the captain, the Sinhala Commission was biased and politically motivated. It denied the recording of evidence against the predetermined proposition of the Commission, the witnesses were biased and they uttered evidence to permit them to come to the conclusions they have predetermined.

A similar sentiment was expressed by President's Counsel Desmond Fernando, the present President of the International Bar Association as regards the presidential Commission.

He was asked at a forum what he thought of the procedure adopted by and the conclusions arrived Commissions of Inquiry. He said reminded him of the great comedian Grucho Marx. In a comedy skit, Marx challenged a person to shoot at a competition. The other person was an expert marksman and he shot first and got 85 points. Grucho with his gun aimed at a blank wall and shot at random. Then he took a pail of red paint and a brush and drew a circle on the wall so that the bullet shots were in the middle.

After the famous or infamous garlanding issue Mangala had some uncomplimentary remarks to make about Desmond but he probably was not aware of what the Bar did in 1988 when he wanted to know what Desmond did during the UNP regime, and then found that his old buddy Mahinda Rajapaksa would vouch that no President of the Bar Association fought the Government in power like Desmond Fernando, did.

But in this instance both Desmond and Mangala would whole heartedly agree on the same subject, that the appointment of most Commissions, whether Sinhala, Tamil or Burgher are motivated and the commissions themselves possibly have an idea of what conclusions the appointing authority expects from them. There are rare exceptions like the Air Bus Probe by one of the most, respectable judges O.S.M. Seneviratne; Much to the consternation of the government and 'C.V' he found that there was no corruption as claimed by the opposition, in purchasing the air buses.

Poor Mangala recently got battered and bruised by sections of the Maha Sangha like England bowler De Freitas at the hand of Sanath Jayasuriya. He would not have expected that his statement on the Sinhala Commission would have such repercussions. Politicians in office sometimes make indiscreet statements like Sir John did in the pre-1956 era. It is true that some human beings when encountered with such tremendous odds become weak and even go into self exile, or get dropped from the team, but others become wiser and strong and saner counsel prevails.

Mangala as the Captain of Thawalama, took the bull by its horns decided to express his regret, but yet Mangala from Matara never agreed to withddraw his statements as he knew that there was something wrong with the entire structure and the findings of the Commission.

A government with a slender majority and as yet waiting to fulfil its promises would always want to soothe the nerves of the electorate. The proceedings of the Special Presidential Commissions took an unprecedented turn when it permitted the electronic media to enter the hallowed precincts of the Supreme Court, to record and televise evidence which was only favourable to the proposition of the Government.

Mangala has said that the Sinhala Commission Report would permit Prabhakaran to make a come-back. If the package is not accepted there will be no peace in the country, he says, but a wag at Hulftsdorp had an extraordinary theory.

"The package will usher in an era of peace and goodwill. Within a few months of the implementation of the package Prabhakaran will unite a divided Sri Lanka and become the sole ruler of Sri Lanka. He will be a reincarnation of the great Elara, who according to the Mahawansa was not only a great ruler but a just King. Mangala for his contribution to make the Sinhala people realise the folly of opposing the package would continue as a powerful Minister of the confederation of Tamil States which would then encompass not only the entire Sri Lanka but also Tamil Nadu and a part of Andra Pradesh and Mauritius. Prabhakaran would become emperor," he says.

Let us come back to the remarks Mangala made about the commissions. According to Mangala thinking the Sinhala Commission came to a predetermined conclusion that the political package would end the Sinhala race.

In the special Presidential Commission appointed to inquire into various murders during the last regime, no one would forget the evidence of Rohini Hathurusinghe. How she cried and pleaded. How she said she was forced to marry the murderer Hathurusinghe by President Premadasa himself. How Sajith Premadasa presented her a gold ring.

The name Premadasa was anathema to the PA regime, like the package to the Sinhala Commission. Mangala says the Sinhala Commission did not permit the Maha Sangha who actively supported the package to give evidence as it would obstruct the Commissioners in coming to their predetermined conclusions.

But the Secretary of the Sinhala Commission has denied this allegation. He has said he in fact invited Minister G.L Peiris and other dignitaries, but they did not respond to the summons. Some other members of the Maha Sangha who supported the package did give evidence and their evidence was recorded.

But it must be noted that these Presidential Commissions did not call a large number of witnesess who would oppose or counter the evidence of witnesses, who supported the proposition.

The recommendations of the commission were to remove the civic rights of some persons for the murder or the conspiracy to murder Lalith Athulathmudali and Denzil Kobbekaduwa. These gentlemen would be elated at the proposition that their portraits would hang in the hall of fame with those who had been deprived of their civic rights. The portraits of Sirimavo Bandaranaike, Felix Dias Bandaranaike, A.H.M Fowize and Nihal Jayawickrama will give up their isolation in the hall of fame with which they put up for the past so many years, with the entry of Soththi Upali, Sudu Mahatmaya and Konde Some and U.L Seneviratne to adorn the walls of the hall of fame.

With Mangala's realisation of the futility of having commissions with predetermined agenda to cripple its political opponents, I believe a motion will be forwarded by him to parliament to repeal the most pernicious piece of legislation, which is the Special Presidential Commissions Inquiry Act.

Otherwise before Prabhakaran annihilates the Sinhala leadership, the Special Presidential Commissions Inquiry Act will remove the civic rights of politicians of any repute in the opposition by successive Governments by use of the draconian piece of legislation, the Special Presidential Commission of Inquiry Act.

The Catholic Church and the legal profession

The Catholic Church, has done a yeomen service to help the families who had, due to poverty and other social ills, permitted their children to engage in sexual activites with foreigners. It must be noted that a few years ago no one took any serious note of our children being abused sexually by foreigners. The Catholic Church, especially at Negombo and Kochchikade, took a prominent role in trying to rehabilitate the families and the children who had engaged in these activities.

It is also true that a few years ago there was no moral compunction or a outrage against homosexuality activities. Very few persons have been charged in the courts with homosexuality. The missionaries segregated the sexes in male and famale schools, as monogamy was the religious principles and polygamy and polyandry which were part of our culture were regarded as cultural practices of heathens.

It is sad that some priests at the Kochchikade Roman Catholic Church in the course of a Sunday mass are supposed to have made derogative statements which border on criminal defamation about the role played by two lawyers who had appeared and defended Victor Baumann in Case No: 2549/96 at the Negombo Magistrate Courts.

The Executive Committee of the Negombo Law Society which is a branch of the Bar Association of Sri Lanka, September 26 unanimously adopted the following resolution.

"The Executive Committee of the Negombo Law Society resolves that Father Ivan Pietersz of the Kochchikade Roman Catholic church has made a defamatory statement on 27.10.1996 in the course of Sunday Mass held at 7.00 p.m. at the Kochchikade (Negombo) R.C Church in regard to two of the members of the Negombo Law Society, to wit'

The resolution is supposed to have been adopted on September 26, 1997 and refers to a statement alleged to have been made on October 27 1996 at a Sunday mass. If this statement was made at a congregation of several hundred devotees giving the impression that these two lawyers have committed a cardinal sin in appearing on behalf of a suspect who is alleged to have committed an offence, then has the priest gone beyond the realm of his religious duties by trying to create illwill amongst the Catholics of Negombo towards the legal profession.

Though the lawyers did not take any action when these statements were made, they had to adopt this resolution when there was a procession against the civil action instituted by the lawyers.

We must not forget the famous trial of Jesus Christ for having called himself the Son of God.

Jesus Christ was convicted on his own confession which according to the high Court was blasphemy. If Jesus Christ had a fair trial there was some likelihood of proving to the Judge that actually he in fact was the Son of God.

So the concept of a fair trial is something every civilised human being would strive for. Lawyers whatever position they hold in society have become a necessary evil, as the society itself is evil, and it is only the lawyers who can defend an accused charged wrongfully, maliciously, or politically by the State.

I believe that the Reverend Father would know that priests belonging to all major religions have been charged in Court for sodomy and other offences and have been defended by lawyers.

The other most infamous trial in history was the prosecution of Galileo, the great Italian mathematician, astronomer and physicist who made several significant contributions to modern scientific thought.

His discovery was such a radical departure from the accepted thought that he was tried by the inquisition of Rome, ordered to recant , and forced to spend the last eight years of his life under house arrest.

It is said that when he was forced to recant, he whispered that it was not the truth. The Jesuits insisted that Galileo's opinion could have worse consequences for the established order of the teachings of the Bible than Martin Luther and Calvin put together. The Pope was so angry that he ordered his prosecution.

I believe if a lawyer had the guts to appear for Galileo, he would have been able to establish from the mass of evidence gathered by Galileo that the earth is not the centre of the universe and that the sun does not orbit round the earth. Unfortunately one of the greatest mathematicians and astronomers had to recant the truth to prevent his being burnt at the stake, as there was no system of fair trial at the time.

Western history is full of Catholic persecution against the Protestants, the Protestant persecution against the Purists, and various other religious sects which derived their origin from Jesus Christ persecuting each other for their beliefs and depending on which clan was in power burning the other clan at the stake.

These persecutions were so barbarous that some fled England and established the new world and founded the United States. The first amendment to the Constitution of the United States is 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press or of the right of the people, peaceably to assemble and to petition the Government for redress of grievances '.

Article 13(3) of our own Constitution has it that any person charged with an offence shall be entitled to be heard in person or by an attorney-at-law at a fair trial by a competent Court. Article 13(5) has it that every person shall be presumed innocent until he is proved guilty.

The Supreme Court (Conduct of an Etiquette for Attorneys-at-law) rule 5 has it that 'an Attorney-at-law may not refuse to act on behalf of a party on any matter or proceeding before any Court, Tribunal or other institution established for the administration of jsutice or any other professional matter at his or her professional fee, provided however an attorney -at-law may refuse to act on behalf of a client in special circumstances which in his opinion would render it difficult to maintain his professional independence or would otherwise make acceptance of such professional matter incompatible in the best interest in the administration of justice'.

The Supreme Court has decreed that an Attorney-at-law will not refuse to act on behalf of a party if his professional fee is paid unless there are special circumstances which would make it difficult to maintain his independence. Baumann or another paedophile or a criminal has the right guaranteed by the Constitution to be defended by competent counsel.In the eyes of any client if an attorney-at-law is competent and if the client is willing to pay the fee demanded by the said attorney-at-law, the said attorney -at-law cannot refuse to appear for him, and if he refuses to do so he would be faced with the great risk of losing his right to practice and being removed from the roll of attorney-at-law.

Demonstrations against lawyers appearing for clients and publicly condemning them performing their duties are a very serious matter and should he condemned by all right thinking people who wish this country to maintain the Rule of Law.

With the maintenance of the Rule of Law the independence of the legal profession must be at all time protected. Otherwise these demonstrations which have been started by some sections of a religious group would spread to other more violent groups.

So far I cannot recall of any lawyer being killed for doing his professional duty other than during the JVP insurrection, when Wijedasa Liyanarachchi was killed.

The church, the temple and other human rights groups protested vehemently because Liyanarachchii symbolised the spirit of freedom. At times of peace lawyers would appear for persons categorised as the greatest villains on earth, but no one would ever dare to question their professional independence and right to appear for anyone .

For the last few years some judges and lawyers have complained that they have received threats by way of anonymous telephone calls and letters, thereby preventing them from performing their duty by society. But other than during the time of the JVP insurrection these threats have been ignored both by judges and lawyers. Even the most notorious criminals who may be termed as the leaders of the underworld respect the lawyers who appear for and against them. No lawyer had been threatened by these underworld elements for appearing against them. So it is regretted that members of the clergy representing the powerful Catholic Church take upon themselves the responsibility of what kind of cases the Catholic lawyers should undertake.

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