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The Sunday TimesNews/Comment

02nd, March 1997



Facing conflicts of interests

Prof. Peiris has questioned the order made by the acting magistrate. The acting magistrates are appointed from the senior most members in a bar on the recommendation of the magistrate by the Judicial Service Commission headed by the Chief Justice. He says the irregular situation surrounding

the surrender of principal suspect Punchinilame, last Thursday, was presided over by Acting (Fort) Magistrate, Jayantha Dias Nanayakkara, Attorney-at-law.

"Justice Minister intimates to CJ deep concern about certain unsatisfactory developments in regard to the investigations and subsequent judicial proceedings consequent to the murder of Ratnapura District Parliamentarian Nalanda Ellawala" Ceylon Daily News Tuesday February 25.

By Mudliyar

When I read this story I was reminded of one of the greatest philosophers that ever lived i.e., Socrates and the passage in the "Apology" of Plato and found how true this passage is even today. "Accordingly I went to one who had the reputation of wisdom, and observed him-his name I need not mention; he was a politician whom I selected for examination and the result was as follows: When I began to talk with him, I could not help thinking that he was not really wise, although he was thought wise by many, and still wiser by himself; and thereupon I tried to explain to him that he thought himself wise, but was not wise; and the consequence was that he hated me, and his enmity was shared by several who were present and heard me.

"So I left him, saying to myself, as I went away: Well, although I do not suppose that either of us knows anything really beautiful and good, I am better off than he is, for he knows nothing, and thinks that he knows; I neither know nor think that I know."

We all know that Prof. G. L. Peiris is not an Attorney-at-Law. He may possess the best academic qualifications east of the Suez Canal, but for some strange reason he has opted not to sit for the only examination that qualifies him to possess the professional qualification to practise Law i.e., the examinations conducted by the Law College, If he had appeared in a court of law and specially in the magistrate's court as a lawyer he may not have made these comments at all.

For the first time, the Honourable Minister has made his communications to the Chief Justice, which are of a highly confidential nature, public. The 'Daily News' has reproduced the text on the first page.

The fifth paragraph of the text reads as follows:

"Secondly, the manner in which another principal suspect, Mahinda Ratnatilleke, surrendered to the Fort Magistrate last week, gives rise to certain important questions which should be answered immediately. The surrender to a Magistrate in a zone far removed from the scene of the incident, the timing of the surrender (around midnight), the question of how the magistrate was informed of the impending surrender and what steps were taken on receipt of such information, are all questions which necessarily arise in this context. The method and manner of surrender may lead to charges of collusion and conspiracy which could irreparably damage the prestige and the independence of the judiciary, a calamitous occurrence which we all should endeavour to prevent."

Some years ago during the UNP regime Mr. Daya Perera was retained by the SLFP to surrender a suspect wanted in a murder case. Mr. Daya Perera and the late Morris Rajapakse surrendered him to the magistrate closest to the place where the accused was hiding and the police was thus unable to torture the accused and extract a confession. Surrendering an accused to a magistrate other than the magistrate within whose jurisdiction the crime was committed has been happening from the time the Criminal Procedure Code came in to existence. This aspect is known to practising Criminal Lawyers of some repute and experience.

Section 115 (3) of the Code of Criminal Procedure Act states that "Subject to the provisions of the Criminal Procedure (Special Provisions) Law, No. 15 of 1978, a magistrate shall not release on bail or otherwise any person who has (a) surrendered himself to court, or (consequent on an allegation that he has committed or to have been concerned in committing or is suspected to have committed or have been concerned in committing an offence punishable under sections 114, 191, and 296 (Murder) of the Penal Code..... be released on bail if proceedings are not instituted against him in a magistrate's court or the High Court before the expiration of a period three months.

This section simply means that if any person is even concerned in the committing of murder and surrenders to court he has to be remanded by the magistrate for at least three months. That person can be released on bail only if proceedings are not instituted. One might pose the question how can a magistrate before whom there are no proceedings or even any information about the crime that suspect has committed take congnisance that the person who wishes to surrender before him has committed any offence.

The suspect, when he appears with a lawyer before the magistrate, will submit to the magistrate an affidavit stating the facts and circumstances of the case and that the police have on several occasions come in search of him and that he fears if arrested the police will torture him to extract a confession and therefore wishes to surrender before the magistrate in order to avoid being tortured by the police. If the magistrate is satisfied with the facts affirmed in the affidavit by the suspect he will immediately remand the suspect to fiscal custody and order the suspect to be produced before the court that has jurisdiction.

If the position of the magistrate is wrong or he has made an order which is legally untenable, then there is provision for the minister through the General to appeal on the order of the magistrate.

The High Court or the Court of Appeal will then decide the legality or otherwise of the order. The Chief Justice as the head of the Judicial Service Commission cannot interfere with an order of the magistrate. If the minister wants the Chief Justice to inquire into these events, the minister is requesting the Chief Justice to do something extra legal. It is only the appellate court that can inquire into the orders made by the judicial officer.

When the minister learned in the law and a person possessed with wisdom and intelligence makes serious allegations against the magistrate that the method of surrender may lead to charges of collusion and conspiracy, any person reading this news item would get the impression that the magistrate was in collusion and conspired with the suspects and/or his attorneys-at-law to permit them to do a perfectly legal application.

In the mind of the gullible public this statement could mean that the magistrate conspired with the suspects to do some act which only was tainted with illegality but which undermines the prestige of the judiciary. This position would indeed be true if the magistrate on being informed by the lawyers of the suspects that they intend to surrender the suspects at his bungalow, and if the magistrate having heard about this attempt secretly violating the norms of judicial ethics informed the authorities and with the help of a friend in the police collected the bounty which at that time was nearly Rs. one million.

Then when the country comes to know about it, everyone will conclude that there was a conspiracy and collusion to collect the Rs. one million with the authorities. Though it may not satisfy bounty hunters, tin-pot dictators and paper tigers we still have an independent judiciary and a Bar which would jealously safeguard the judiciary and its independence.

Mr. Mervyn Wijetunga is one of those who epitomises that fact. It was only a few years ago he fell foul of President Wijetunga's administration. The Gampola Bar protested. When he was at Matale some local politicians found that Mr. Wijetunga was not a respector of persons. His independence was not appreciated by many local chieftains. Nonetheless Mr. Wijetunga administered justice without fear or favour. Naturally he is not the darling of the politicians whether of the PA or the UNP variety.

Most of those security guards of politicians and others who have lost sight of the law and are abusing their authority, have been extremely unhappy that these suspects could not be arrested by them and burnt at the stakes or taken to the Colloseum and thrown to be eaten by hungry lions. This would have permitted them to carry on with the murderous propaganda they unleashed on the credulous public. After the surrender of the main suspect the circus of violence, arson and pillage came to an abrupt halt. Raiding houses without search warrants in the guise of apprehending Punchinilame became a farce, when Punchinilame, the most wanted man surrendered to the magistrate in broad daylight.

One would ask whether it was the method of surrender or the contents of the letter published in the 'Daily News' which would irreparably damage the prestige and the independence of the Judiciary. To members of the public, the letter written by Prof. G.L. Peiris could give the idea that there was a conspiracy or collusion between the magistrate and the suspect or at least with the counsel for the suspect.

If not for this letter and some publicity given to the surrender of Punchinilame to court, no one would dare question the proprietary of the magistrate making an order for remand whether at his bungalow at midnight, or in the courthouse. The ordinary people of this country have not questioned the legality or otherwise of any order made by a judge. Now that these new facts before them and postulated by no other than the justice minister himself they would ponder whether the magistrate had acted exceeding his authority by permitting a suspect to be surrendered at his residence and at midnight.

They may wonder where was the court and where were the police officer, the court crier, the interpreter mudliyar, the stenographer and the case record when this happened. To them the whole matter may be reviewed under a new light shed by Prof. Peiris. Till this was brought to their notice, they would have read only of court proceedings before a higher courts where the legality or otherwise of court orders were canvassed and were reported in the newspapers.

But now the minister for that matter Professor of Law has shed new light on a fiasco which brings to light the new face of the judiciary. A judiciary which may have conspired and acted in concert or collusion with the suspects or his Attorney. Has the magistrate acted in breach of the duty he owes to the public and to the solemn oath he took.

It has been the tradition that no person however important he may be, should make statements which lower the high esteem the public have for the judiciary. Attacks on courts judges and the administration of justice has become a frequent occurrence in the recent past that it has become impossible to preserve in a community the dignity and respect for the court.

Prof. Peiris has questioned the order made by the acting magistrate. The acting magistrates are appointed from the senior most members in a Bar on the recommendation of the magistrate by the Judicial Service Commission headed by the Chief Justice. He says the irregular situation surrounding the surrender of principal suspect Punchinilame, last Thursday, was presided over by Acting (Fort) Magistrate, Jayantha Dias Nanayakkara, Attorney-at-law.

The self same attorney was the counsel who accompanied two of Mr. Punchinilame's security personnel when they surrendered to court this week. This gives rise to an inference of conflict of interest which could have serious repercussions with regard to the public faith in the judicial process. This statement is as ludicrous as the earlier statement.

If the suspect and his attorney decide to surrender before the same magistrate before whom the other suspects have surrendered and on that day if the permanent magistrate is absent then should he instruct his client to turn back and come on another day. When Punchinilame came to court what prevented the bounty hunters from arresting him was that he was within the courthouse. One step outside the courthouse there may have been no Punchinilame. Punchinilame in the eyes of some people may be the most despicable murderer. But he also has some rights called the fundamental rights guaranteed by the Constitution. Mr. Jayantha Dias appeared for Punchinilame's security guards. Professor Pieris believes the magistrate may have some conflicting interest in the matter. But could he be expected to make an order refusing to permit him to surrender before him because the other day as an attorney he surrendered two of Punchinilame's body guards? In a situation like this there is only one or two orders that he could have made; the first and the legal order is to remand him to fiscal custody; the second is to release him on bail, which is an illegal order.

Now for the sake of argument if Mr.Dias made the second order releasing him on bail, should Professor Peiris go public and discuss that order? What he could do is to request the Attorney-General to make an application before the High Court to cancel the bail ordered by the magistrate and re-remand him. In the same letter Professor Pieris has given an accolade to crown proctors.

He had said that all crown proctors did their duty well and they were persons of unimpeachable integrity. Rather regrettably whilst extolling the virtues of the crown proctors, professor reproves the conduct of some acting magistrates. Professor Peiris believes the attorney who acts for the magistrate could get his junior to make submission when one of their cases are called, and that the acting magistrate on the day he is acting must not get anyone to appear for and on behalf of his client. Consequently if the acting magistrate has filed a proxy he must let the client suffer the consequences and even get his case dismissed as there is no one to represent his client. What would really be objectionable is where an acting magistrate gets his junior to make an application on behalf of his client and makes an order in favour of the client.

All practitioners know that the acting magistrate only postpones the case to a another date. If the acting magistrate makes an order which clearly establishes his bias, the Judicial Service Commission will take appropriate steps to even remove that acting magistrate from the panel. That is a matter for the Chief Justice and the Judicial Service Commission and for the minister.

Professor G.L. Peiris cried foul that the suspects were produced in Colombo. When a suspect surrendered to the police, the CID produced him before the Fort Magistrate far removed from the place of incidence. It is also a matter of record that the suspects could not be produced before the Ratnapura Magistrate on the due date as the government could not provide adequate security. The safety of the suspects could not be guaranteed.

The kind of publicity that the government orchestrated was such that for the first time a magisrate's bungalow was raided by the police in search of suspects. The Horana Bar Association moved a resolution condemning the action of the police. Even the residences of judicial officers did not escape the scrutiny of the security forces in their thirst to find the most wanted man of the century. The famous Chinese Emperor Shi Hawang-Ti, the first emperor who united the whole of China in the third century B.C. had all the books in China burnt, because he found that the scholars had become too pedantic, and lost touch with practical reality, and he sent all the scholars to work on the Great Wall of China which he thereby completed.

Justice Minister G.L.Peiris has issued a statement to the state run newspaper Daily News on the alleged excutive interference with an ongoing judicial proceeding. The following is the text of his statement.

"There has been no attempt to influence judges, suborn witnesses or subvert the judicial process - things which this government has ensured are only grim memories of our unhappy recent past. What was rightly and properly done, was to draw the attention of the Head of the Judiciary to a highly unsatisfactory state of affairs which could have a seriously deleterious effect on the public's perception of, and faith in, the entire judicial process. This is the duty and the right, not only of the Minister of Justice, but of every right-thinking citizen of our country.

"His Lordship the Chief Justice responded positively with an undertaking to inquire into the matter and to take appropriate action. This is in no way contradictory to the postulates of the separation of powers doctrine or the independence of the judiciary. In contrast, ensuring that persons acting in a judicial capacity act in accordance with the highest standards of moral and ethical conduct, will only further buttress the independence and prestige of the judiciary - a vital institution essential for the maintenance of the democratic ideal."

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