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Hulftsdorp Hill

13th September 1998

Lawyers protest against what they see as serious blow to democracy and justice in this country

Arrest of judge: was it politically motivated?

By Mudliyar

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It was in 1988 during the JRJ regime that law yer Wijedasa Liyanarachchi was killed. That tragedy united the profession, irrespective of party affiliations. One of the largest meetings of the Bar Association of Sri Lanka was held to protest against this horrendous criminal act, that was perpetrated against a member, a foremost human rights lawyer.

This was the first time that lawyers took to the streets. The protest included picketing by lawyers outside courts and was spearheaded by lawyers practising at the Colombo Magistrate's court.

It was these lawyers who mooted an unprecedented resolution resolution number 4 proposed by the Executive Committee.

The resolution read: "This Association further resolves that no member of this association should appear for a police officer in any court or tribunal until this association makes an announcement that it is satisfied that meaningful steps have been taken in respect of interdicting of all police officers concerned in the arrest, detention and death of Mr. Wijedasa Liyanarachchi, and to institute, without delay, criminal proceedings against all persons responsible for the death on appropriate charges".

The wrath of the profession was not only directed at the police, but also at the Attorney General's Department, and more specifically the then Attorney General Sunil Silva. The reason was that many in the profession felt that the Attorney General's Department was trying to shield the perpetrators of this horrendous crime.

But it must not be forgotten that this incident took place when the country was in the throes of anarchy, when every civilized form of life was threatened by the Deshapremi Janatha Viyaparaya, the monstrous killing squads of Rohana Wijeweera's JVP. The apologists for the crime justified the killing by saying Mr. Liyanarachchi was the head of the kangaroo court which passed the death sentence on Vijaya Kumaratunga.

But for the large section of the profession, Mr. Liyanarachchi was a lawyer who appeared in the highest tribunals of the land, defending victims of human rights violations. But the Attorney General's Department was alleged to be conspiring with the police to subvert justice and fairplay to preserve democracy and the rule of law.

It was coincidentally the 10th death anniversary of Mr. Liyanarachchi. Resolution number 4 was adopted unanimously by the Bar Association on September, 10, 1988. It was on September, 10, 1998, after ten years and one day, from that earlier time that lawyers numbering more than 1,000 took to the streets holding placards, protesting against the arrest of Colombo High Court Judge Mahanama Thilakeratne. The placards indicated that the wrath of the profession included the Attorney General.

There was speculation as to whether this was in any way linked to Mr. Thilakeratne's ruling in a recent case, acquitting Dr. Rajitha Senaratne, and saying the case against Dr. Senaratne was a fabricated one. Dr. Senaratne was prosecuted by Senior State Counsel Navaratne Bandara, who led evidence before the Lalith Athulathmudali and Kobbekaduwa Commissions on behalf of the State.

The allegations that the case was fabricated is directed at the CID. It is known that Bandula Wickramasinghe headed the team investigating the alleged offence committed by Dr. Senaratne.

It is also known that Mr. Wickramasinghe went abroad to find evidence against Dr. Senaratne. Whatever evidence his team unearthed is a matter of record, but it ended in strictures being passed by the High Court Judge on the prosecution for having fabricated a case against one of the most virulent critics of the Government. The state neither appealed nor filed revision papers to delete from the record the findings of the High Court Judge.

The proceedings against Dr. Senaratne ended when he was acquitted but apparently the proceedings against the High Court Judge have not been concluded.

On June 1, 1998 one Uyanahewage Niroshani Somachadra complained that he was assaulted by the son and the servant of Judge Thilakeratne. One Pium Kalyana, the son of the injured has said one Sena and a person by the name of Upul assaulted his father. He also has mentioned that when he was passing Mr. Thilakeratne's house, he saw this and heard a gunshot. The complainant has not mentioned anything about the report of a gun shot. The Kahathuduwa Police recorded a statement of the son, the servant and Upul. Mr. Thilakeratne has volunteered and appeared before the Kahathuduwa Police station and recorded his statement. The Kahathuduwa Police reported the matter to the Kesbewa Magistrate.

As this is an offence which falls within the ambit of the Mediation Boards Act and the Court is precluded from taking any steps without a certificate from the Mediation Board, it has quite correctly referred the matter to the Mediation Board.

While the police were awaiting the certificate from the Mediation Board, someone petitioned the Government. The matter was referred to the CID which is frequently being accused of becoming a one arm bandit of the Government.

The CID before this had a proud track record before political henchmen were appointed overlooking senior officers to perform activities which respected police officers would refuse to do.

Everyday we hear of people being murdered in broad day light, and when investigations fail, the CID refuses to take over many of these matters unless some authority directs them to do so.

It was only three days ago that senior lawyers brought to the notice of the Fort Magistrate that the murder of an Army Officer in 1994 has not been solved due to the inaction of the police, and was referred to the CID which has failed to do an investigation, though the Magistrate has directed the then DIG CID to appear in court and takeover the investigation and produce the suspects in court. The CID say that they do not have the personnel to investigate even the offence of murder referred to them by a Magistrate who formed the opinion that there are circumstances which merit investigation.

But at the behest of the Government the CID would appear to be ready to inquire into a petty offence if it involves a person whom the Government intends prosecuting.

The Attorney General similarly has the discretion to file indictment in the High Court in any case which is triable by the Magistrate's Courts. These provisions had been there from time immemorial, as it was expected that the Attorney General would act impartially and would not be politically biased or motivated.

Our imperial masters knew that the local police officers could be corrupt, unreliable and deadly, and therefore, the recording of confessions by the police of an accused was made inadmissible in court, unlike in England.

When they legislated to grant insurmountable power to the Attorney General, the imperial masters believed that they would be ruling the dominions forever.

Later, though the Criminal Procedure Code was amended, the politicians continued with the unfettered power of the Attorney General.

The CID, some say, took over the investigation of judge Thilakeratne with relish. When a junior lawyer pleads with Magistrates, that the case against his client has been fabricated by the police, many a magistrate pooh poohs them. For them the police cannot do any wrong, they are the protectors of justice.

Mahanama Thilakeratne joined the judiciary as a magistrate. He learnt by trial and error the methods used by the police, at times, to implicate political opponents. Mahinda Rajapaksa would never have become a minister if Mr. Thilakeratne believed the concocted, fabricated evidence of the witnesses who implicated him with double murder. Deputy Minister Mahinda Wijesekera would be languishing in jail on a trumped up charge of arson, if Mr. Thilakeratne believed the UNP sponsored witnesses.

After the 1977 victory the looting and arson that was organized by the UNP members against the opposition was punished by him when he was the Magistrate, Rakwana. He did not want to suspend the sentence of arsonists and looters who had unleashed violence on political opponents.

Similarly as the High Court Judge, Chilaw he sentenced to death the wife of the local SLFP MP and a Deputy Minister for murder. Then in Colombo he acquitted Rajitha Senaratne. When he acquitted both Mahinda Rajapaksa and Mahinda Wijesekera, J.R. Jayewardene was at the height of his power. No action was taken to even transfer him out of Matara. The present Judge of the Court of Appeal, D. Jayawickrama, who was the District Judge, has cautioned Mr. Thilakeratne that he has received information that his telephone was being tapped.

When the CID took over the investigations, they found a witness, nearly three months after the alleged incident. He for the first time implicated Mr. Thilakeratne for having shot at the complainant and had joined in the fray. The CID added to the charge of grievous hurt a charge of attempted murder. The reference by the second witness that he heard the report of a gun shot was sufficient fodder for the CID.

On the basis of this statement the CID went before the Kesbewa Magistrate and moved for a warrant to search the residence of Mr. Thilakeratne. The Kesbewa Magistrate refused to accede to the request. Later State Counsel Navaratne Bandara, made an application before the Kesbewa Magistrate and requested him to issue a warrant on the first instance to record the statement of Mr. Thilakeratne. The Magistrate conceded to the request.

Some lawyers at the Kesbewa Magistrate courts who were gravely concerned about the issuance of a warrant, immediately contacted Mr. Thilakeratne who was in his Chambers having lunch.

The word spread and a large contingent of members of the High Court lawyers met the High Court Judge.

Mr. Thilakeratne wanted to appear before the Magistrate and to make an application to recall the warrant.

The lawyers went before Munidasa Nanayakkara, the Kesbewa Magistrate and surrendered Mr. Thilakeratne. Mr. Nanayakkara released Mr. Thilakeratne on bail.

In the morning before the State Counsel moved for a warrant for the arrest of the High Court judge, Romesh de Silva, P.C. the President of the Bar Association of Sri Lanka was informed of the unfortunate predicament that had befallen the legal profession and the judiciary. He met Attorney General Sarath Silva and requested to stop the CID from arresting the High Court judge.

He impressed upon the Attorney General that if it became necessary he would undertake to produce Mr. Thilakeratne before any police officer.

The AG refused to prevent the CID from taking action. Mr. De Silva was indeed a sad man. At the end of his career as the President of the Bar Association of Sri Lanka he was facing a crisis of his lifetime.

After the release of Mr. Thilakeratne on bail, the magistrate ordered all warrants issued against him withdrawn. To make it doubly sure that the police would not arrest him on the warrant already issued, he issued a certified copy of the proceedings to the suspect Mr. Mahanama Thilakeratne.

The lawyers who appeared for Mr. Thilakeratne did not want to take any chances as they suspected that the CID may want to satisfy their vendetta against the Judge who had once told them what they are with regard to a case heard by him.

As expected A.S.P. Premaratne of the CID came to the residence of Mr. Thilakeratne situated at Kiriwaththuduwa, and when he was shown the order of the Magistrate recalling the warrant and ordering of bail by Mr. Thilakeratne he accepted it and went away without making an arrest which would be per se illegal.

The drama enacted by Bandula (Show) Wickramasinghe unfolded at about 8.30 in the night. He came with about 50 armed police officers and surrounded Mr. Thilakeratne's residence.

This was to arrest Mr. Thilakeratne, advocate of the Supreme Court of Sri Lanka and presently the High Court Judge of Western Province, Colombo.

When Mr. Thilakeratne and the lawyers present showed the order of the Magistrate recalling the warrant of arrest issued against Mr. Thilakeratne and releasing him on bail to appear before him on 17th of this month, he had put the order aside and held Mr. Thilakeratne by his hand and wanted him to get into the vehicle.

During this time Bar Association chief Romesh de Silva was contacted and he tried to contact the IGP. Mr. de Silva was told that the IGP had gone for a walk.

Then he tried to contact Punya de Silva. DIG CID. When Mr. de Silva identified himself, the officer who answered the phone said that Punya de Silva was not in his seat.

The cellular phones of the IGP and the DIG CID did not respond. Then he contacted the Chief Justice who it is learnt had spoken to the AG. But his talks too bore no fruit. The lawyers were angry.

They spontaneously decided to picket in front of the Colombo Magistrate's Court. The placards said in loud and bold letters; 'Arrest of Judges, end of democracy and Justice' 'Is the CID ruling the country?' and to sum it all in rustic Sinhala: 'Yakada Mallata Gullo gehuwanam panmallat gena mona kathada?'

If a judge of the High Court could be treated in this manner what would happen to you and me?

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