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Hulftsdorp Hill

3rd January 1999

Supreme Court the supreme protector

By Mudliyar
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In 1998, as in the past years, there has been much talk of laws delays. Litigants have written to the newspapers of untold hardship they face due to the delays of the deliverance of justice. There is a universal disenchantment felt by the litigants as the backlog of cases gets heaped up in courts.

Many important persons have expressed solutions. There is a pall of gloom that envelopes the system of justice. People do not understand that the population has nearly doubled during the past 20 years. The opportunities of going to court have become wider, though access to justice may not be readily available to the poorest of the poor. 

Courthouses have not increased in proportion to the population. When justice is delayed and is subverted by the Executive having an overriding influence over the administration of justice, and the machinery thus turns slowly in apprehending suspects, people necessarily find solace in summary justice. 

The rate of crime increases. It has increased to such an extent that it is difficult to keep a count of murders taking place every day in this tiny Island. Underworld gangsters kill each other and find poetic justice in such killings. Heroin and drug smuggling cartels seem to work without any hindrance. 

Some politicians seem to abet criminal elements to carry on their trade of heroin trafficking, drug smuggling, manufacture and distribution of illicit liquor and in some areas even denuding the forest of valuable timber. These acts are done with the alleged connivance of authorities and are being manipulated by unseen hands of political masters. 

Neither the existing archaic laws nor the methods could curb crime and it takes time to mete out justice. The increase of crime would mean increase of cases and this corresponds to some extent to the increase in civil litigation.

But in the midst of this gloom and hopelessness there is one beacon of light that has shone brilliantly. Its shine had enlightened the hearts of many people oppressed by political and executive terror. This light emanates from the Hulftsdorp Hill which houses the Superior Courts Complex. Increasingly it has asserted the independence to show clearly and unambiguously that no power or pressure could change its attitude of protecting the rights of the people. 

Those who advocate doom and gloom due to the slowness with which the wheels of administration of justice turn, must pause and ponder and look back at 1998, during which the Supreme Court and the Court of Appeal have resolutely made order after order against arbitrary and capricious executive action. This alone was the greatest victory for the democratic masses of this country.

To my mind outstanding decisions of the Supreme Court in fundamental rights cases are so great in numbers and the orders continue to reaffirm the faith the people have in their Judges and the judicial system. 

Of those judgements in 1998, to me the most outstanding decision of the Supreme Court was the order that released Sirisena Cooray, former Secretary General of the UNP, from illegal and unlawful detention and ordering the Secretary to the Defence Ministry to pay substantial compensation for the illegal arrest. 

The reasoning behind my conclusion is on the basis that the state made the most abominable charge against Mr. Cooray; that he conspired with associates of Soththi Upali to assassinate the President of the country. This was at a time when Mr. Cooray organised a massive meeting in Colombo to commemorate the late President Premadasa. The Judges of the Supreme Court did not cringe with trepidation due to the decision they have to make on the face of such serious and far reaching allegations that had been made which involved the security of the State and the President.

The decision of the Supreme Court clearly exhibited the manner in which the CID presented evidence and showed that the Government and its officers would not hesitate to bring even a concocted story of attempted assassination of the President of this country without a shred of evidence if such allegations would deprive the rights of an individual citizen and could keep such a person incarcerated as long as the Government desires.

The other most important decision of the Supreme Court in 1998 was the decision to grant leave to proceed against Attorney General Sarath N. Silva in his personal capacity for the alleged violation of fundamental rights of another High Court Judge. This was indeed a landmark case as it was the first time that the Supreme Court granted leave against a person for what he did as the Attorney-General.

Similarly another extremely important decision was made by the Supreme Court on December 17 when it decided that a Deputy Minister had violated the fundamental rights of an ITN journalist.

We have been told repeatedly that the era of terror is over and the era of freedom, liberty and human rights has been established and is protected by the present Government. 

Whenever accusations are made against the Government that it is like a huge elephant sunk in a mud hole unable to lift even a limb, the apologists say that though inaction, delay and procrastination may be the watch word of the present Government, there are no tyre piers, disappearances, 'goni billas' and Pajeros without number plates running amok and politicians using police powers to terrorise their opponents. 

Every time there is a national crisis of some magnitude the state-run media go berserk and show video clippings of a bygone era which was symptomatic of terror unleashed on the civilian population. 

What the video clippings do not show and the apologists do not remind us is that there was a government within a government virtually at war with the democratically elected government. Today there is no such semi-government or a sub-culture of politically motivated fascist killing squads waiting to seize political power which they believed flowed from the barrel of a gun.

But has the culture of violence unleashed on the people by politicians abated? 

The answer to this question has been pronounced very vividly by the Supreme Court of this country. Justice Asoka de Z. Gunawardene, one of the most eminent jurists in the country, has some revealing facts to narrate in his judgement when he with the other two Judges found that Deputy Minister Reggie Ranatunga had violated the fundamental rights guaranteed under Section 14(1)(a) of the Constitution. 

To those in the Government and the Police who refute allegations made by the general public that some politicians sit in the chair reserved for the OIC of a Police Station and give orders to police officers to commit illegal acts I would only refer to them the following passage of Justice Gunawardene's judgement:

"At the Gampaha Police Station the petitioner has seen the first respondent (Reggie Ranatunga) seated in the chair of the Officer-in-charge of the Police Station. The first respondent has questioned the petitioner and has demanded to know where the tape was. The petitioner has explained that he was merely performing his official duties as an official of the ITN, a state organisation. "Although the first respondent was not acting in his official capacity as a deputy minister and although the action of the second and third respondents did not per se amount to executive action the fifth respondent (Police Sergeant, Gampaha) participated in the attempt to seize the petitioner's camera and tape, in the assault on him and arrest. Other officers were present and did nothing to check the situation or to arrest them or even to record their statements, instead they assisted in the arrest and they even permitted the first respondent (Mr. Ranatunga) to question the petitioner while sitting in the chair of the OIC. What would otherwise have been purely private action of the first to third respondents was transformed into executive action by reason of the approval, connivance, acquiescence, participation and inaction of the fifth respondent and other police officers"

This is a clear forewarning to all OICs of police stations. If the local politician sits in the OIC's chair and gives orders which would be tantamount to the violation of fundamental rights of any individual the OIC by his passive inaction by permitting the politico to sit in his chair may be found guilty of violating the fundamental rights though he himself would not have done such a thing.

The Supreme Court has made reference to the manner in which the first respondent (Mr. Ranatunga), the second respondent Palitha Lihiniyakumara, who is a P.A. member of the Minuwangoda Pradesiya Sabha and the third respondent Piyasena Perera, a supporter of the PA reacted to the application made by Sumith Jayantha Dias, a journalist at the ITN, in the Supreme Court alleging that the respondents one to six breached his fundamental rights.

The attorneys retained by the first three respondents had treated the entire application of the petitioner in such a lackadaisical manner that after having filed the proxy absented themselves on more than one date and had failed to file objections and written submissions though several opportunities were given to them to do so. This clearly shows the attitude of the respondents to the Supreme Court and to the final determinations of the Supreme Court. 

The Government came to office promising to establish the Rule of the Law and fundamental rights enshrined in the Constitution, and agreed to uphold fundamental rights and signed international covenants. 

But the realities show the sad departure from these noble ideals the Government agreed to uphold. If any member of the Government is found guilty of infringing the fundamental rights and if that member is a Deputy Minister appointed to that post by the President and the president continues to keep him in her Cabinet is it not fair to deduce that the President is least concerned with the opinions and the conclusions of the Supreme Court of this country.

If the Constitution is ever going to be amended, let the people of this country force the legislators to include in the Constitution that no representative of the people shall violate fundamental rights of its subjects and continue to hold any position in the Government.

This judgement also shows the extent to which politicians make police officers and even some government doctors subservient to them.

On the day of the incident the petitioner was lifted by the respondents, thrown inside the back of a Police Jeep and assaulted. Inside the Jeep respondent police officers rested their feet on the petitioner's back. Then the Petitioner was produced before the Gampaha JMO. The JMO examined and said that he was smelling of liquor and/or under the influence of liquor, but had not observed any injuries. 

But the JMO Colombo South who examined the petitioner the day after found seven injuries which were fresh and this is what Justice Gunawardene states about the observations of JMO, Gampaha:

"It is to be observed that the nature of the injuries sustained by the petitioner is consistent with such an assault. In the circumstances it is strange as to how the JMO Gampaha failed to observe any injuries on the petitioner when he examined the petitioner on second January, 1997 at the Gampaha Hospital. Hence the report of the JMO Gampaha in regard to the intoxication and the absence of injuries on the petitioner lacks credibility."

Sumith Jayantha Dias who is in charge of the news team of the ITN said as soon as this act of assault took place, the print media of the country gave details of the incident. But ITN, the very institution where he works, was strangely silent or had muted response, though the degrading treatment was meted out to one of its employees. 

But it was fortunate that Mr. Dias was able to get the assistance of President's counsel L. C. Seneviratne and Ronald Perera who would have appeared for a reasonable fee or no fee to expose this outrageous act.

On the face of the complaint any ordinary lawyer would have advised Mr. Dias to get the Police to file action in the Magistrate Courts. A difficult process indeed. But the other alternative would have been to file a private plaint at the Gampaha Magistrate Court which would necessitate the certificate from a Mediation Board. But Mr. Seneviratne with his erudition and experience in the field of human rights was able to see that the action of the Deputy Minister by making orders seated in the chair of the OIC went beyond a private matter and had by such action has acquiesced the powers of the executive and violated the rights of the petitioner.

Even though many litigants groaned about the lack of speedy disposal, access to justice and laws delays, this case alone would demonstrate that even an ordinary media man could obtain orders against an extremely powerful member of the Government mainly due to the fact that we have judges who are a pride to the nation.

Jungle Telegraph

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