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Rajpal's Column

7th June 1998

Commission comes a cropper

By Rajpal Abeynayake

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Good theatre, a bystander observed, was part of the Supreme Court proceedings which issued notice, in a ruling which was unprecedented at least to this extent, on one of its former colleagues.

Justice Tissa Bandaranaike, former Supreme Court Judge and Chairman of the Special Presidential Commission probing the killing of Lalith Athulathmudali was noticed by his former colleagues of the bench, Justices A De Z Gunewardana, Justice Ameresinghe and Justice Dheeratne to appear before the court in a case filed by Sirisena Cooray. Mr. Cooray had asked for a writ to quash the SPC findings in respect of himself.

The Special Presidential Commission is appointed by the Executive, and is an institution that is beholden to further the interests and the directives of the office of the Presidency.

Therefore, since a Special Presidential Commission to probe the Lalith Athulathmudali killing was a part of an election promise, the President appointed a commission which, without much further ado, proceeded to find Mr. Cooray a member of the plot to assassinate Athulathmudali.

But, the institution of the Presidential Commission unfortunately is not possessed with the sanctity of court, and today, that fact seems to be plain as pink.

The commission has been attacked, willy nilly by innuendo cartoon and political statement so regularly, that if the commission was to haul up all the people who were in contempt of it, its members would have nothing better to do with their time.

But, all this while, the commission was the target of people who were at best conscientious objectors. But, when the Supreme Court of this land issued notice on the members of a Special Presidential Commission, it appeared that the credibility if not the sanctity of Special Presidential Commission was being officially cast in prima facie doubt by the judiciary of this land, although being noticed by the Supreme Court is not necessarily evidence that the commissions findings were being thrown out of the window.

But, only the purblind will deny the political character of the whole issue of Presidential Commissions, and their ramifications in our political culture.

This is not to cast aspersions on the SPC or to say necessarily that it was rigged or biased. It is to say that the office of the Special Presidential Commission can never be seen apart from the political backdrop in which such office is created.

In Tuesday's Supreme Court sittings, which were attended by a galaxy of the UNP's former movers and shakers, the lawyer for the petitioner, a former UNP Cabinet Minister K. N. Choksy argued that Mr.Cooray cannot be held in contempt of court for the fact that he did not appear in person before the commission when he was summoned before it.

But, Mr. Cooray had been named a suspect by the commission (euphemism a person whose conduct was under investigation) and therefore, was certainly not a witness.

He could not, hence be compelled to appear as a witness, for the simple reason that he wasn't one, and was for all intents and purposes a suspect.

A suspect was entitled to be represented by his lawyers, and Mr. Cooray had indeed been represented by his counsel though the commission was of the view that the lawyers "were out of status,'' as there was no personal appearance by Mr. Cooray himself .

The Supreme Court was inclined to hold with Mr Choksy.

Mr Choksy in his submissions castigated the commission for holding that the lawyers 'had no status in court, adding in his acid undertone that 'this is no way to treat members of the Bar, me lords.'

All this most certainly provided for good theatre, but on the issue of contempt, it is noteworthy that bigger players have been found in contempt in lager theatres of litigation.

P. W. Botha, the arrogant former leader of Apartheid South Africa, was recently found in contempt of the Truth and Reconciliation Commission appointed by his successor, Nelson Mandela the president of South Africa.

Though we are not aware of the terms of the presidential commission in South Africa, we are aware that Mr. Botha was vocal and outspoken in his move to dis (flout, flagrantly dismiss ) the commission's directives.

Indubitably, the Truth and Reconciliation Commission would have been reduced to a mockery if Mr. Botha had not been hauled up for contempt, because he bad-mouthed the commission in public and said that the commission had no business calling him to appear before it.

In the case of Mr. Cooray, at worst he absconded. But, since he didn't speak contemptibly of the commission, and since he was represented by lawyers in any event, why would he be held guilty of contempt?

Though all this in retrospect raises oodles of questions, to encapsulate them, wouldn't we have to wonder

A) for the sakes of their own credibility, shouldn't special Presidential Commissions act within the fundamentals of the law, such as ""no man may be judge in his own cause, etc., etc.,?

B) The Special Presidential Commissions are institutions which are constituted to further the objectives of the office of the Presidency.

The salient point is that serving the office of the Presidency should be as distinct and separate from serving the interests of the incumbent personality of that office. Furthering the interests of the Presidential office does not necessarily equate to serving the interests of the person—the Mr. President.

How best can this distinction be achieved, and how best can the office be constituted so that this distinction is a sine qua non?

C) In spite of all the casuistry that would be adduced to the contrary, at bottom, don't the SPCs bring the Executive hurtling into the realm of the judiciary, or at least into a trajectory that is in a collusion course with the judiciary?

True, the SPCs are meant to be impartial bodies, but they discharge the most important quasi judicial function that the President can possibly bestow on anybody.

The repercussions of SPC findings could be awesome. Yet, as evidenced in South Africa, they are indubitably a necessity.

But if the judiciary deems the commissions out of line, how would the commissions be viewed in the mind of the large mass of the people, unless there are inbuilt systems to provide that these commissions act within the normal limits that would be acceptable to the judiciary and the polity?


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