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Hulftsdorp Hill

16th May 1999

Judge in the dock: AG's dept. in chains?

By Mudliyar

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It was on September 10 last year that Colombo High Court Judge Mahanama Tilakeratne was arrested by the CID and taken to the notorious Fourth Floor.

The incident created much consternation among lawyers and judges with many members of the legal profession walking out of courts in protest and holding demonstrations. The lawyers staged the walkout in unison, as they thought this was the culmination of a series of attacks on the judiciary after the Kumaratunga administration assumed office.

Mahanama Tilakeratne was arrested at his residence after he had been, earlier in the day, released by the Magistrate, who had issued a warrant of arrest on the submissions made by Senior State Counsel Wasantha Bandara.

But a team of police officers armed with deadly weapons surrounded the house of the very judge before whom they may have appeared on innumerable occasions. Even a hard core criminal would have sweated on seeing such a galaxy of police officers. Judge Tilakeratne was treated like a notorious underworld criminal or an LTTE suicide bomber. It appeared that the police officers were determined that judge Tilakeratne should be arrested and taken to the Fourth Floor of the CID at any cost.

The crime he was alleged to have committed was to shoot at the complainant who was lying on the ground after being beaten by some others. A woman witness described how Mr. Tilakeratne pulled out a gun from his waist and at very close range shot at the fallen victim several times. This statement was not corroborated by the complainant or his wife or his daughter or his son, who were the persons who had seen the alleged crime. They made their statements to the Kahathuduwa Police. None had reference to Mr. Tilakeratne, leave alone shooting, or being present at the scene of the offence. Some witnesses had seen a shadow moving inside the house of Mr. Tilakeratne, and behind the wall, and heard a gun shot being fired from the house of Mr. Tilakeratne.

On the basis of the statements recorded by the Kahathuduwa Police, irrespective of the fact that those statements implicated the son of a high court judge, the police nonetheless arrested the accused and produced him before the Magistrate. The Magistrate directed the matter which came within the provisions of the Mediation Board.

The entire Bar in unison protested at the manner in which the CID had acted in arresting Mr. Tilakeratne after he had been released on bail by the Kesbewa Magistrate.

They were aghast that Senior Superintendent Bandula (Show ) Wickremasinghe could proceed to arrest a high court judge in spite of two lawyers' assertion that they were armed with a letter from the registrar stating that Mr. Tilakeratne had been released on bail and the warrant had been recalled.

When the protests of lawyers reached a crescendo, demanding the resignation of Attorney General Sarath Silva and the interdiction of SSP Wickremasinghe he made it known that he as a dutiful police officer was just carrying out instructions. If this position was true then the question was who had given those illegal instructions.

The question that intrigued every one was whether when the CID was informed that the warrant of arrest had been recalled by the Magistrate who had earlier issued it, whether the CID called the Attorney General at 5.30 pm and obtained further instructions or whether they acted on their own and arrested Mr. Tilakeratne.

This is what Mr. Wickremasinghe states in his affidavit to the Supreme Court in the fundamental rights application filed by Mr. Tilakeratna:

"On the same day at 17.30 hrs, Deputy Inspector General's/Criminal Investigation Department office, the 2nd Respondent (Mr. Premarathne) telephoned the DIG and informed him that the aforesaid warrants had been recalled by the learned Magistrate Kesbewa. At this stage the DIG/CID (3rd Respondent) contacted the Attorney General and informed me that the Attorney General had granted approval for the arrest of the Petitioner under the normal law in terms of the Code of Criminal Procedure and directed me to appraise the lawyers present at the High Court Judge's house of the approval of the Attorney General."

The position of SSP Wickremasinghe is confirmed by the following police officers: D. Y. S. Samaratunaga (SP), Senaka Kumarasinghe (CI) CID, N.W.G.S.Abeysekera (IP) CID. Their affidavits to the Supreme Court state: "On the 10th of September '98 at 1700hrs. I was attending a conference chaired by Punya de Silva, DIG CID., Bandula Wickremasinghe then Director of the CID, was also present. During this conference SP Dharmatileke brought to the attention of Punya de Silva DIG/ CID that the warrant for the arrest of High Court judge Mahanama Tilakeratna had been recalled. At this stage DIG/CID contacted the Attorney General around 1730 hrs. over the telephone and informed Bandula Wickremasinghe that he had instructions from the Attorney General to arrest the High Court judge, according to normal law, namely, under the provisions of the Criminal Procedure Code, as the offence said to have been committed were unlawful assembly, and attempted murder… which are grave crimes and congnisable offences.

Punya de Silva (DIG/CID): "I state that at about 1715 hrs the 2nd Respondent contacted me over the telephone from Thalagala and informed me that the learned Magistrate Kesbewa had recalled the warrant. At about 1730 hrs I contacted the Attorney General over the telephone and communicated the Attorney General's advice to Bandula Wickremasinghe (1st Respondent) namely, that the High Court Judge could be arrested according to the normal law, even without a warrant for the offences suspected to have been committed by him as stated earlier.

I directed the 1st Respondent, who is the Director of the Criminal Investigations Department to proceed to Talagala and arrest the Petitioner. I further told the 1st Respondent to appraise the lawyers present of the Attorney General's advice."

In contrast to these statements the principal law officer of the state, Attorney General Sarath Nanda de Silva states "The first occasion on which the 3rd Respondent spoke to me regarding this matter on the telephone on the 10th was at about 8 p.m. after I had finished work in office and returned home on that night. On that occasion he informed me that his officers had gone to the residence of the Petitioner to arrest the Petitioner and search his house for the purpose of the investigation and that they had refrained from taking further action since the lawyers who were present with the Petitioner had a letter recalling the warrant.

I asked the 3rd Respondent whether he knew the contents of the letter to which he replied in the negative. Then I told him that in view of this complication his officers would have to act with caution.

"The 3rd Respondent stated that there is nothing to worry and that he had sent the Director of the CID to the Petitioner's residence to handle the matter. At that time I did not know that the 1st Respondent ( Bandula Wickremasinghe) was the director of the CID since all matters connected with the CID were handled by the Additional Solicitor General who is in charge of the subject.

"The 3rd Respondent called me within an hour of the first call and informed me that the Petitioner had been brought to the CID office and his statement is being recorded.

"I told him that the sooner the matter was dealt with, the better it would be for everyone concerned, and to ensure that everything was done properly. He did not speak to me regarding the circumstances relevant to the arrest and I had no occasion to question him regarding this matter since.

"I brought to the notice of the President, being the Minister of Defence, that an incorrect note had been made by the 1st Respondent which had led to protests by certain members of the Bar against the Attorney General's Department. {The President} assured me that she would call for a report from the IGP and take action in the matter."

This is a sad indictment on the police by the chief law officer of the country. On many occasions, courts have imposed stiff prison sentences, based on notes made by petty police officers.

The Attorney-General's Department has fared no better. After Siva Pasupathi left the office, it is said the department has been politicised. The UNP and the PA should share the blame equally. The Attorney-General's Department gave orders to arrest a High Court Judge on the evidence of a woman who had been an ex-police officer, and had made a statement a few months after the incident.

Neither the complainant nor his wife nor other inmates of the house ever mentioned the existence of such a witness to the Kahathuduwa Police or even to the CID later

The other institution that would have entertained such a testimony would have been the Athulathmudali Commission.

The Attorney-General's department also came under a cloud when it moved court to discharge Lohan Ratwatte, the son of Anuruddha Ratwatte, who was implicated in a murder case.

It is also alleged that the department sent its officials to the Embilipitya Magistrate's Court to discharge government politicians who had been committed to the High Court to stand trial in a murder case.

But the department employs a galaxy of extremely talented lawyers who could match any colossus in the private bar.

It must be said that whenever the department handles a case without any political involvement it has acquitted itself well and has earned the respect of every one.

Like Rohini Hathurusinghe of the Kobbekaduwa case fame, Eugene Pathmini, the star witness who claimed she saw Mr. Tilakeratne shooting at the fallen victim, in the examination in chief had admitted on oath she lied in court more than five times in cross examination.

The Jungle Telegraph

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