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Hulftsdorp Hill

6th December 1998

Is this an act of revenge?

By Mudliyar

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It is a matter of great re gret that I have to burden the reader day after day with Mahanama Tilleke-ratne’s arrest and the subsequent events that followed. Some readers have written to me inquiring from me the prudence of writing about this matter week after week. To this question I would like to say I would have preferred to digress on other important issues which relate to the legal profession, the Judiciary and the Rule of Law. But the actions of the Police and the Attorney General’s Department do not permit me to do so.

The actions of the Police, CID and the Attorney General’s Department which I enumerate below clearly show what has now crept into these institutions. This is in spite of the fact that the Supreme Court of this country granted leave in fundamental rights applications and the decisions of the Court of Appeal to issue notice on Bandula ‘Show’ Wickramasinghe to show cause why he should not be dealt with for contempt of Court.

The new turn of events unfold like this: On November 12 this year Mr. Tillekeratne’s son Padmin Tillekeratne, the 2nd accused in the attempted murder case was in his garden at Kahathuduwa when he noticed the garbage pit was full. Then as was usual he tried to set fire to the garbage but failed as there was moisture.

Then he went in to the house and found some petrol which had been previously used to clean an engine and was contaminated with engine oil and poured it into the pit and tried to set the refuse on fire. Almost instantaneously the pit and the petrol caught fire. The flames ignited by the petrol gushed out and caused some minor burns on the face of Padmin Tillekeratne.

He was immediately admitted to the Horana Hospital and treated for about 13 hours. He also had a history of migraine attacks. The burns aggravated the migraine and he was not in a fit condition to attend Courts on Nov. 19. Padmin Tillekeratne submitted a Medical Certificate issued by the DMO Homagama, which certified he was suffering from migraine and was unable to attend Court. Yet he gave a letter in writing to his Senior Counsel Jayantha Weerasinghe granting his counsel authority to conduct the inquiry in his absence.

From the inception of criminal proceedings in this country it has been a practice to submit medical certificates from qualified medical practitioners and quacks alike to obtain an adjournment of an inquiry.The Courts which often sees through the genuineness of the Medical Certificate have on applications made by the other side or ex mere motto, rejected the Medical Certificates. The courts then issue notice on the Doctor and order the JMO or the DMO to examine the person concerned and report to Court whether the party was fit enough or not to attend Court.

If the JMO and DMO was of the opinion the party was in a fit condition to attend Court, the Courts sometimes went to the extent of issuing a Bench Warrant , i.e. a warrant directing the Court Sergeant to arrest the party and produce him for suitable action.

These measures are taken to counter false medical certificates being tendered to court with the intention of delaying the proceedings. The Criminal Procedure Code permits Counsel to appear on behalf of an absent accused and continue with the proceedings, provided the accused consents and instructs the lawyers to do so. In the case of Padmin Tillekeratne, this was exactly what he did.

Mr. Mahanama Tilakaratne is now on leave, and it would be in the interests of him and other suspects to conclude the inquiry as early as possible. But when the certificate was tendered on November, 19, an application was made by the State to inquire into the issuance of this Medical Certificate and the Kahathuduwa Police was ordered to inquire on this matter.

Daya Perera, P.C., the Senior Counsel for Mahanama Tillekeratne, who has been in the Attorney-General’s Department for 15 years and a practitioner with more than 44 years at the Bar is defending Mr. Tillekeratana. He says that most unusual applications have been made by the State in this case. First, a witness for the defence, who had appeared in court, to contradict the testimony of the complainant, had been questioned by the CID. This is an unprecedented method of inquiry by the CID.

If it was done at the instance of the AG’s department the methods employed by the Department may be different to the days when Mr. Perera was a crown counsel. The CID as usual persisted in finding out whether Mr. Tillekeratana brought the witness to court. He was allegedly harassed, threatened and a statement had been obtained..

Would the CID ever have taken such an interest even if Prabahkaran was produced and charged for mass murder, In fact the inquiries into the deaths of ex president Premadasa and ex presidential candidate Gamini Dissanayake by the ‘Tigers’ are not yet concluded and no indictment has been filed.

The CID would inform court that they are awaiting instructions from the AG’s department to take steps. But when a medical certificate was produced on behalf of a suspect with implicit instructions to his counsel not to request for an adjournment and the Magistrate permitted the case to proceed, an order was sought to make further inquires into the certificate without even challenging it.

Mr. Perera, P.C. says “When I was in the AG’s Department I would have never challenged the Medical Certificate issued by a government doctor even if the case had to be postponed at great inconvenience to the prosecution, unless I had instructions in writing that the Medical Certificate was false and that I had made a minute in my file of these instructions. Even if I received such instructions I should first challenge the veracity of the Medical Certificate.” Why such application was made was only apparent when first the Kahathuduwa police with the Moratuwa ASP and later the CID took charge of the inquiry.

After this order was made the accused Padmin Tillekeratne, was taken by the police and was shown to a Medical Officer on Nov. 23 and then the accused was taken to the two doctors who issued the Medical Certificates.

The lessons the police officers receive at the Police Training College are dumped into a refuse bin at the Police Training College, when they assume duties. Some police officers metamorphose into villains. Only a person who has undergone torture and harassment will know the trauma associated with such brutality.

It was in this context that a European Judge while addressing the Jury once remarked that it was normal for a person to run for his dear life when the police were chasing him. The judge was addressing the jury and wanted it to ignore the only item of evidence which was against the accused, - that he ran away from the scene of the offence on seeing the Police.

In this instance the Police - an ASP and an OIC armed with the order of Court had used methods of interrogation known to police, to intimidate and cast aspersions on the two govt. medical officers who had issued the Medical Certificates. The intentions of the Police was to implicate that Mr. Tillekeratne’s son Padmin’s injuries were due to an explosion caused by a grenade or a bomb.

On Nov. 23, the story, that either a bomb or a mortar had exploded in Mr. Mahanama Tillekeratne’s residence at Kahathuduwa was given over the telephone and faxes to the media. Lawyers who appeared for Mr. Tillekeratne received several calls inquiring whether this information was true.

The fear psychosis created would have caused trauma and mental pain to the inmates of Mr. Tillekeratne’s household who live in a remote hamlet in Kahathuduwa surrounded by a rubber estate exposed to security risks. On Nov. 24, a group of police officers barged into the residence in the absence of Mr. Tillekeratne, broke open the padlock and forced themselves into the house without a search warrant from a Magistrate. They came on the pretext of finding out whether the house had caught fire due to a bomb explosion. Later during the day and night vehicles- cars, vans and police trucks, some without number plates drove into the vicinity supposedly inquring into an alleged mortar attack or an explosion that they believed took place within Mr. Tillekeratne’s house.

The events caused so much panic and anxiety in the minds of Mr. Tillekeratne and his family that his wife who is a heart patient had fainted several times. The treatment meted out to Mr. Tillekeratne and his son on the fiasco of a Medical Certificate clearly shows the malicious motives of the Police.

Is the Police acting independently to harass Mr. Tillekeratne.

The ridiculous caper relating to the Medical Certificate did not end there. The State Counsel had then moved that a statement of Jayantha Weerasinghe, Senior Counsel for Padmin Tillekeratne should be recorded to find out who had given him the Medical Certificate. This is the most unusual and a unique application made on behalf of the Attorney-General. It is clear that any communication between the client and his Counsel is privileged.

To question Counsel on instructions received from a client made to court not by a mere police officer but by the State Counsel himself shows the bona fides of the Attorney-General’s Department. This is an affront to the legal profession and it is the duty of the Executive Committee of the Bar Association of Sri Lanka to look into the novel turn this case has taken. Threatening the independence and integrity of the legal profession.

But the Bar I am sure would never succumb to the pressures. When there were death threats looming large over human rights lawyers the legal profession took it upon itself to fight against massive odds. A large number of lawyers lost their lives, but ultimately the Bar was the winner. The scheming designs of the politicians were defeated by the Bar when it established its legal aid centre to file Habeas Corpus and Fundamental Rights applications. The goons could not single out one single individual lawyer.

The Mahanama Tilleke-ratne pisode is a matter over which lawyers are fighting to establish a similar principle. First there was the illegal arrest. Second there were the mala fide motives to implicate Mr. Mahanama Tillekeratne. If the bar does not protect its judges, it would be doomed.

The international prestige of the Bar Association of Sri Lanka is something every single member could be proud of. During the last insurrection the only organisation, professional or otherwise that fought fearlessly when violence took over the country was the Bar Association . The Law Council of Australia wrote to the then Secretary of the BASL appreciating the work of the Bar Association:

Law Council of Australia

The National Council of Lawyers

30th May, 1990

Mr. Hemantha Warnakulasuriya

Secretary

Bar Association of Sri Lanka

129, Hulftsdorp Street

Colombo 10

SRI LANKA

Dear Mr. Warnakulasuriya,

Thank you for sending a copy of the Bar’s Annual Report. I am very disturbed to read of the terrible conditions under which the members of the legal profession have had to work in Sri Lanka, leading in some cases to their deaths.

Although of course we have had reports in the media about these matters, the picture of what has been happening has become clearer as a result of reading the Bar report.

I believe it would be appropriate for Australian lawyers to be made aware of these matters and therefore I have arranged with the editor of our monthly magazine, Australian Law News, to publish an article based on the material on pages 1 - 9 of your report. I hope this would enhance Australian Lawyers’ understanding of the extreme difficulties faced by their colleagues in Sri Lanka.

Please accept my best wishes. I would be grateful if you would convey to all members of the Bar the sympathy of Australian lawyers at the death and suffering of so many of your members, and our wish that the situation in Sri Lanka will return to normal as quickly as possible.

Yours sincerely,

Alex Chernov

Acting President

We congratulate the government for appointing Mr.K. C. Kamalasabayson P C as the Solicitor General, in place of Mr. Upawansa Yapa, who retired. We believe Mr. Kamalasabayson, would bring the same lustre, honour, dignity and impartiality to the seat of the Hon. the Solicitor General, which Mr. Yapa gave it in abundance.


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