30th May 1999
Bashing of judiciary goes on unabated
During the dark days of the JVP insurrec tion the rule of law took a respite and the rule of the jungle came into force. But even during that time it is a fact that both parties to the struggle, specially the JVP and the DJV had a lot of respect for the Judiciary.
Former Chief Justice, Parinda Ranasinghe used to have regular meetings with the Magistrates and District Judges at his bungalow to discuss problems relating to the minor judiciary. It was at one of these meetings held during the period of terror that a Judge told of his encounter with the DJV. A Magistrate who was travelling with his family to Colombo to attend one of these meetings was stopped by a group of young people. They were armed. They ordered the Magistrate to get out from his vehicle. The leader of the gang told the Magistrate that they wanted the vehicle for an important mission and it would be returned to a spot which they named, the next day at 5 p.m.
The Magistrate got down and ordered his family to do so. He then began to unload some things from the van. The leader of the group became a bit suspicious as he had some law books in the vehicle. He went towards the Magistrate and in Sinhala asked him who he was. When the Magistrate disclosed his identity the leader was very respectful and asked him why he hadn’t disclosed his identity at the outset.
The rest of the youth including those who were armed came to the vehicle and loaded the stuff into the vehicle and asked the Magistrate to proceed. When the Magistrate got in, the leader came to the driving seat and told the Magistrate ‘Nadu pramada karanna epa’ – Don’t delay cases.
Mr.Ranasinghe as the then Chief Justice used to relate this story to Judges and members of the Bar. During the height of the insurgency a District Judge in Kandy got several letters ordering the Courts to be closed. When the letters were handed over to the NIB and the CID they found the letters had not originated from the DJV but from a member of the Court staff who had been transferred out of Kandy. Even in Colombo the letters that came to Courts ordering the closure was denied by the leadership of the JVP. There were other elements who wanted to bring the Government into disrepute and they were found to be responsible for those letters.
During the days of the 13th amendment the Supreme Court Judges who sat to decide on the legality of it received letters which too had been written by the DJV. The text apprently written in blood read if the 13th amendment was rejected it would be the last judgement they would be writing. The Judges had the alternative of hand over these letters to the Army and the Police. But after the 13th amendment was passed they received another letter stating that the DJV had information that someone had written threatening letters to the Judges of the Supreme Court and that the JVP and DJV were not responsible for them. The NIB confirmed that the first set of letters were forgeries and not written on authentic letter heads of the JVP but the second letter was authentic.
The lesson is that with all its brutality and fascist manifestations and killings the JVP and its hierarchy had respect for the Courts and Judges of this country. Even they felt it would not be a safe political ploy to attack the judicial system of the country which had earned the respect of the remotest villager as against the Executive or the politician.
Respect for the Judiciary has existed from the time the Judicial system came into being in Sri Lanka. It has become a tradition and a part of our culture. That may have been one reason that the JVP who was striving to establish a dictatorship of the proletariat did not take the Judiciary head on, though they claimed the Judicial system of this country was the preserve of the elite the rich and the powerful and the ordinary poor masses had no access to it. It was difficult even with all its sermons to get the people to rally round and oppose the system of Judges who had earned the respect of the larger percentage of the people.
During the time the JVP held sway there were demonstrations all over the country. School children also participated in these demonstrations against the education system corruption and other ills of the establishment. But there were no demonstrations against the Courts, Judges or the legal system. Wijedasa Liyanarachchi, Charitha Lankapura and Kanchana Abeypala were gunned down as they fearlessly filed habeas corpus applications against the State and the Police. When they were killed the Government media accused them of being JVP sympathisers. These lawyers who were in the forefront of the struggle had immense faith in the judicial system. Therefore, they would never ever think of demonstrating against the system of justice which in their own reckoning had come to their own aid more often than not.
But today the whole system is crumbling. Murder is rampant and civil society is gasping its last breath. The Judiciary against overwhelming odds has been pumping oxygen to keep itself alive. The President made remarks of ill- will towards the Judiciary. Then her ministers followed suit both inside and outside Parliament. It reached a climax when a High Court Judge Mahanama Tilakeratne was virtually taken by the scruff of his neck to the infamous Fourth Floor and detained till the following morning under sordid circumstances.
The chief law officer of the land who was informed of the arrest, according to his own affidavit at 8 o’clock in the night on the day of arrest did not do anything, even though he was informed that the warrant had been recalled. At the time Mr.Tilakeratne was arrested, the Bar came out in unison and protested as they felt there was something sinister about the entire episode. The politicians were trying to send the wrong signal to the Judiciary - fall in line otherwise be damned.
The legal profession feels there will be no independence in the country if the Judiciary eats from the hands of the Executive. They have maintained their independence throughout. Having failed to bring the Judiciary to book the political machinations have worked systematically to threaten the Judiciary by sheer power, and coerced the Judiciary to submission.
Mr. Shahib, the Chief Magistrate, Kandy had to encounter a protest on the basis of a judicial order he made. The order was perfectly within the Statute. This was when he decided to release some cattle which had been illegally transported. The provisions of the Animals Act had to be used to make a decision according to the law, but the mob did not understand the law or the procedure. They used the raw emotions of the people to conduct a protest against the order of Court. What happened on the May 19, this year was a culmination of all these events which began with the highest in the land desecrating the supreme altar of justice, and this has been taken as the manner in which Judges ought to be treated by the public. On April 22, Mohan Ratnathilake had complained to the Ratnapura Police that at about 4.15 p.m. the Chairman of the Nivithigala Pradeshiya Sabha of the PA Premalal Jayasekera shot at him and then fled away in his jeep. The Police made investigations and found that the door of the complainant’s vehicle had been damaged. The suspect, Premalal Jayasekera alias Choka Malli, was an extremely powerful person in Ratnapura and no police officer would dare arrest him even on a charge of murder. The Ratnapura police had no alternative but to report facts to the Court, and the Court issued a warrant to arrest him. On May 3, Choka Malli was produced before the Primary Court Judge and was released on bail. The Primary Court Judge did not have the opportunity of reading through the earlier reports, as the police had carefully manipulated to produce the suspect Choka Malli avoiding the Magistrate and producing the suspect at 6.30 p.m. at the bungalow of the Primary Court Judge.
The Primary Court Judge released the suspect and ordered him to appear on May 5, and to deposit Rs. 2,500/= as cash bail. Premalal Jayasekera, alias Choka Malli appeared in the Magistrate Court on this same day and having considered the submissions made by the defence and Nissanka Nanayakkara, a young counsel from Colombo, the Magistrate revoked the bail order and remanded the suspect till May 19. On this day, having carefully considered the submissions of all parties and having considered the fact that under the new Bail Act the possession of a firearm was an offence punishable with life imprisonment and bailable only by the High Court had remanded the suspect till June 2. The Magistrate Wimal Nambuwasam,then retired to his Chambers. What happened thereafter is something that has never happened in the history of the Judiciary of this country.
There have been instances where the highest and the mightiest have succumbed to the Rule of Law. But there has never been instances where anyone dared to invade the precincts of a hallowed Magistrate Court and demonstrate within its premises against a Judicial Officer. An unruly mob of about 300 invaded the Magistrate Court, Ratnapura in a most dastardly manner, shouted slogans and threatened him with death. If not for the intervention of the Court staff, the life of the Magistrate, Mr. Nambuwasam would have been at stake
The police arrived but were unable to quell the breach of peace which had taken unimaginable proportions. Then this unruly mob, allegedly supporters of Choka Malli, threatened the Magistrate with death. They threatened to kill him when he would be travelling to Kalawana Circuit Court through Nivithigala. Others wanted Mr. Nambuwasam transferred immediately.
Up to now not a single person has been arrested. After the episode of the arrest of Mr. Tilakeratne, where the CID states that they proceeded to arrest a High Court Judge with a posse of Police Commando armed to the teeth disregarding the court order which was shown to them that the warrant had been recalled, brought the esteem of the Judiciary to its lowest, not by any action of the Judges but by the action of the Executive.
Mr. Nambuwasam succeeded another independent Magistrate Anura Ranasinghe as the Magistrate of Ratnapura. It is a relief to note that Mr. Nambuwasam did not for a moment think of the person who had been produced before him.
He had the sense of justice to change the order of bail made by the Primary Court Judge at 6.30 in the evening and when he was enlightened about the law he decided that the nature of the offence and provisions of the law must be taken into cognizance and an order for bail made per incuria must be changed.
The Executive has made the administration of Justice suffer due to its belief that they could remain in power by manipulating the civil society by the help of the thug. The Batalanda Commission Report gives a description of the abysmal depths the State has fallen in to. The learned Commissioner states, politics has become the preserve of the elite and the common thug and not a concern of the common man. the elite and the common thug hand in glove manipulates the society to gain power. It seems that State power is only for the ‘super-world’ and the ‘underworld’. The police has apprently failed to uphold the administration of justice. (The second part of last Sunday’s column will appear next Sunday).
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