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25th April 1999

Birth of an offensive Act

What about path breaking legal research?

By Mudliyar

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Birth of an offensive Act

Dr. C.S. Silva (not his real name) from Kotahena claimed he was a homeopathic physician. He sat under a tree in the car park reverved for the Magistrate Court vehicles issuing Medical Certificates to those who consulted him. He always boasted that his diagnosis was better than that of the best doctors in Sri Lanka.

It was up to the patient to obtain medicine from a Western or an Ayurvedic physician for the ailment diagnosed by him. His business was to diagnose and then dish out a Medical Certificate certifying the client was unable to attend Courts on a given day. The litigants who wanted to postpone a trial, harass their opponents, did not like the face of a Judge and had been informed that within a few months the Judge would be on transfer; or had been told by astrologers, soothsayers and practitioners they were undergoing a bad period , suddenly developed diarrhoea, renal colic, kidney failures, high temperature and every conceivable ailment known to the western medical science. They went to Dr. Silva for diagnosis and a Medical Certificate.

To my mind his Medical Certificates had not been challenged in Court. Even if they were challenged it would be impossible to find a dispensary of a doctor who called himself (Hom)? on Bloemendhal Road.

Dr. Silva in his youth was an active politician of the LSSP. We now hear comrades of the LSSP exhorting the values of democracy and non-violent elections. Those days the young revolutionaries who believed the revolution was round the corner had a large number of harbour and dock workers who were in the forefront of any revolutionary struggle.

They had with them cycle chains, kris knives, barber's razors, knuckle dusters to be used in a revolution. Dr. Silva contested a Municipal Ward from the LSSP. His opponent was Weerasinghe Mallimarachchi who had been brought into politics by V.A. Sugathadasa. It is said that when V.A. Sugathadasa was the Mayor of Colombo, more than half the members of the Colombo Municipal Council were fed, clothed and looked after by him. His opponent R. Premadasa could not muster even a few councillors and his dream of becoming the Mayor of Colombo was never fulfilled.

During that time, apparently Dr. Silva had vowed to assassinate V.A. Sugathadasa by throwing a bomb. Mallimarachchi had given this valuable information to his boss V.A. Sugathadasa. V.A. Sugathadasa discussed this matter in the cabinet and the Offensive Weapons Act was passed in Parliament.

A bomb or a grenade or even a 'duppy' made by binding two arrack bottle stoppers together was sufficient to maim a person and was grouped as an offensive weapon. Dr.Silva was arrested and produced for having been in possession of an offensive weapon. Though in fact there was no truth in the conspiracy theory, Dr. Silva was in remand for nearly two years and two months.

The Offensive Weapons Act has an extremely obnoxious section. This section said only the Supreme Court had the power to grant bail if there was an allegation that the suspect had in his possession an offensive weapon. This was why Dr. Silva remained in remand for an inordinate length of time for a crime he never committed.

Even in 1966 he was the subject of political victimisation when politicians used the law of the land to keep in custody their political opponents. After trial he was honourably acquitted of all charges. But as the charges were filed by the Attorney General it was not possible for Dr. Silva to claim any money either from V.A.Sugathadasa or Weerasinghe Mallimarachchi.

Due to this difficulty in obtaining bail it was common among complainants to hurl a 'cheenapatas' and damage windows and make a complaint to the Police that someone threw a hand bomb or a 'duppy' at them. The conniving police officer would collect a soil sample, introduce some gun powder and some nails to it and produce the suspect with the sample in Court. The suspect would then have to remain in remand until the Government analyst analyzed the samples and submitted a certificate to court whether the samples contained a debris of an offensive weapon. The Government Analyst's Department is so understaffed that it takes months, sometimes years, before the samples are tested and a certificate submitted to Court. If the certificate negates the offensive weapon, the accused is discharged. But the object of the complainant is achieved.

Today locally made hand bombs are not in vogue. With the ethnic war and importation of huge arsenals of deadly weapons, hand-grenades have become common. In the recently concluded Wayamba Election it has been alleged that thugs who had been brought into Wayamba had in their possession deadly weapons- hand grenades being the most common.

It is strange that at Wayamba the Police did not recover a single hand bomb or a grenade from the possession of allegedly PA thugs. But the Deputy Mayor of Uva who was allegedly brutally assaulted by PA thugs was handed over to the Police and it was alleged that a hand grenade that was found by the Police had been introduced by the very same thugs who had assaulted him.

The Police had apparently connived with the Government and produced the hand grenade and suspect in Court.

The Magistrate relying on the Offensive Weapons Act and the report filed by the Police remanded the wounded Deputy Mayor of Badulla. It was with some difficulty his lawyers were able to get him released on bail. He was in remand for nearly three months until the Court of Appeal finally granted him bail.

In another case Mahindananda Aluthgamage who had been sworn in as a minister of the Central Provincial Council had followed the vehicle of Sisira Aluthgamage, his cousin who had crossed over to the UNP from the SLFP and was contesting the Central Provincial Council election.

The van driven by Sisira Aluthgamage's driver was apparently stopped by the police and thoroughly searched at the instance of Mahindananda Aluthgamage. A hand grenade was allegedly found in the van and the driver was later produced before the Kandy Chief Magistrate, A.L.M.M. Sahib.

By this time ITN was carrying out its usual propaganda blitz on behalf of the PA. If the hand grenade was in fact found in the van the Police should have sealed it and taken all the steps the Police were bound to take under the Criminal Procedure Code and the Departmental orders. The hand grenade should have been in the custody of the reserve Sergeant until it was produced before the Magistrate. Instead ITN was summoned few days after the arrest of the suspect and the public was shown how bravely the Police Officers recovered an offensive weapon hidden in a van.

But counsel who appeared before the Magistrate were able to demonstrate the farcical discovery of the hand grenade and how the Police allegedly connived with the Government in power to incarcerate a candidate who was running for provincial council elections.

After the submissions of Sarath Kongahage, the learned Magistrate issued notice on the OIC to produce the hand grenade in Court after the luncheon adjournment.

The Magistrate then took upon himself to question the OIC. After questioning, the OIC had to virtually apologize to the Magistrate for the manner in which the production was discovered and brought to Court. When it was obvious to the Magistrate that the whole drama was to falsely implicate a person and incarcerate him indefinitely he promptly granted bail to the suspects.

Magistrate Tudor Gunaratne, Gampola was informed that the same UNP candidate Sisira Aluthgamage had allegedly thrown a hand grenade from his house at Nawalapitiya at some PA supporters. When the Police visited the scene they allegedly found a stream of blood from the house to the road. When the police pieced all the information and evidence together, they allegedly found that instead of Sisira Aluthgamage throwing a hand grenade at a passing motor car carrying PA supporters, PA supporters had allegedly tried to hurl a hand grenade at his house. Due to inexperience the grenade had allegedly exploded with the complainant sustaining injuries.

Though the Police on the basis of the complaint produced Sisira Aluthgamage and others, the Magistrate was able to form a correct opinion as to who threw the grenade at whom. He released all the suspects on bail. If the Magistrate had not examined the evidence before him carefully and inquired from the Police the correct position as to the hurling of the grenade the victims of this fabrication would have been in remand and the real culprits would have become complainants.

The last of this episode involving the Aluthgamages was enacted at Nawalapitiya where at the inquest conducted by the Magistrate, two sets of witnesses gave diametrically different statements.

The first set of witnesses said that UNP member of Parliament and chief organizer for Kandy, Abdul Cader, (who allegedly claims he has never seen a hand grenade,) and Keheliya Rambukwella the UNP Provincial Council Member(who obtained 141,000 preferential votes while being incarcerated) had allegedly thrown hand grenades and shot at the crowd after alighting from the motorcade.

The other set of witnesses who were two police officers assigned to Mr. Cader by the Ministerial Security Division said when the motorcade was attacked, fearing for the life of Mr. Cader and Mr. Rambukwella they had shot into the air thereby dispersing the crowd.

The Magistrate in this situation had no other alternative but to remand the suspects produced by the Police, as one person had died due to gun shot injuries. The seven had to remain in remand for nearly 40 days.

The submission made by Counsel was that the new Bail Act limits the jurisdiction of Courts to grant bail to suspects only in respect of the Public Security Act and that the Prevention of Terrorism Act and in respect of all other offences release of suspects on bail was now determined by the Bail Act and therefore the High Court has jurisdiction to grant bail.

At the inquiry Anil Obeysekera, P.C. and Chairman of the Ceylon Petroleum Corporation was present in Court to object for bail. The High Court Judge decided that the High Court had jurisdiction. Later Buweneka Aluwihara, Senior State Counsel, in the true spirit of the Department stated that he would not object for bail provided that certain conditions were imposed.

Mr. Rambukwella was incarcerated during the election campaign. One wonders whether he would have received more preferential votes if he was out of remand and had campaigned at the elections.

There was a large gathering of people outside the vicinity of the Court to know the final outcome. After the order was given the crowd waited outside the Bogambara Prison to catch a glimpse of their local hero.

As he was taken out of the remand to be taken to Gampola to be released on bail, the people got into about 40 vehicles and followed the Black Maria to Gampola.

It was reported that Gampola town was deserted. Everyone had thronged outside the court house to cheer their local hero.

I hope the fiasco involving hand bombs and grenades to incarcerate political opponents would end with the Keheliya Rambukwella episode.

What about path breaking legal research?

I am a regular reader of the column by 'Mudliyar' in your Sunday paper. Like many other readers, I too salute his efforts to record and expose the proceedings of various Presidential Commissions. The Athulathmudali Assassination Commission appears to have been a total farce. I take my hat off to 'Mudliyar'.

However, I do take exception to certain aspects of Mudliyar's writing. Often he praises various personalities in the legal system such as Judges and officers of the Attorney Generals Department. Writing about them Mudliyar often uses words like honourable, honest, and independent etc.

The other matter that struck me was the somewhat "unscientific" method Mudliyar used in determining whether a person has qualities such as honesty or an independent mind.

For example, when he wants to describe a Judge as an independent person he would cite as an example a case where this judge heard and acquitted a known SLFPer during the UNP period. No two cases are similar. To take one or two cases out of thousands a judge has heard and to declare him a honest and independent cannot be considered a reliable method of assessing a person.

All public servants are expected to serve honestly and independently. Judges are not an exception. But more is expected of judges. They must be intelligent, learned and liberal. We would like Mudliyar to illustrate to us the intelligence and the learning of our Judiciary. For instance how often are judgements of our superior court cited in foreign law reports? Are our Judges making path breaking legal research? Mearly declaring a judge as an honest person is not what is expected of a commentary on a legal system.

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