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Hulftsdorp Hill

25th July 1999

Exposing mess in law enforcement agencies

By Mudliyar

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When it was an-nounced that Mahanama Tilakaratne's fundamental rights application was to be delivered on Thursday Hulfsdorp Hill did not reverberate with unusual expectations. It was a foregone conclusion that the DIG, Punya de Silva, and the Director of the CID, Bandula Wickramasinghe, would be found to have violated the fundamental rights of the High Court Judge. The 4th respondent was discharged by the Supreme Court. The 4th respondent was none other than Sarath Nanda Silva, the Attorney General of Sri Lanka. Mr. Tilakaratne made an application that he was personally responsible for the violation of his fundamental rights. Mr. Sarath Silva is the Attorney General under whose purview the prosecution of Mr Tilakeratne's case rested.

Though the 4th respondent,the Attorney General, was discharged, the conduct of a section of the Attorney General's Department came under microscopic scrutiny, and the public had the opportunity to assess the manner in which these gentlemen disregarded the norms of justice and fairplay, and the sordid manner in which the arrest of a High Court Judge was commandeered.

The entire case rested on the issuance of a warrant of arrest by the Kesbewa Magistrate, and the subsequent recall of the warrant by him, and the arrest and detention of Mr. Mahanama Tilakeratne by the CID. Mr. Wasantha Navaratne Bandara, a Senior State Counsel on behalf of the CID, made an application for the issuance of a warrant before the Magistrate, Kesbewa. This is what the Supreme Court had to say about that application. "It is recorded with laconic brevity that the warrants were asked for and were issued because the suspect is a High Court Judge, and that the Magistrate must assist the Police." This is a non-sequitur. It was not submitted that the petitioner was either avoiding to make a statement or arrest by the investigators. It was not stated why the magistrate's assistance was required for the investigation by arresting the petitioner and others. However, the magistrate whose conscience was apparently troubled, took the precaution of ordering that he be promptly informed when the suspects were taken into custody, and be produced before him without delay.

Then the Supreme Court states that the whole process of the request for a warrant made by Wasantha Bandara, did not come within the ambit of the Criminal Procedure Code. The Supreme Court states: "It must be primarily borne in mind that the purpose of issuing process of Court is to obtain the appearance of a person in Court and not to secure his presence at any police station or the CID headquarters. Issuing a warrant is a judicial act involving the liberty of the individual and no warrant of arrest should be lightly issued by a Magistrate, simply because a prosecutor or an investigator thinks it is necessary. It must be issued as the law requires, when the Magistrate is satisfied that he should do so, on the evidence taken before him on oath. It must not be issued by a Magistrate to satisfy the sardonic pleasure of an opinionated investigator or a prosecutor."

How is it that a senior prosecutor like Mr. Bandara made such a glaring mistake ?

Was it done to satiate the sardonic pleasure of an opinionated investigator or a prosecutor ? It must not be forgotten that Mr. Bandara was the same senior State Counsel who appeared on behalf of the State before Mr. Tilakeratne in the now famous case involving Dr. Rajitha Senaratne, appointed UNP MP. In this case the main witness for the prosecution made serious allegations against the officers of the Attorney General's Department. It was in this case that Mr. Tilakeratne made that famous remark that the case had been fabricated.

When Mr. Tilakeratne was produced before the Chief Magistrate Colombo, what happened thereafter shows the intention of the Attorney General's Department, was to vigorously persecute Mr. Tilakeratne. Senior State Counsel Sarath Jayamanne, appeared at the Chief Magistrate Court for and on behalf of the Attorney General's Department. This is what the Supreme Court has to say about that incident. "This is a State Counsel, different from the one who appeared before the Chief magistrate when the petitioner was produced before him. It appears that this unsuspecting State Counsel was led by the nose by the 1st respondent who transfigured him to be a mere mouth - piece. The learned State Counsel vehemently submitted that his instruction was that the warrant of arrest of the petitioner should not be called, and the petitioner was not released on bail. When the Magistrate was told otherwise, the Chief Magistrate did what the learned State Counsel should have done in the interest of justice. Having adjourned the Court, he telephoned the Kesbewa Magistrate who confirmed that the warrant was recalled and the petitioner released on bail.

The Supreme Court accepted the affidavit of Sarath N. Silva. In his affidavit Mr. Silva states:"When I learnt of the note alleged to have been made by the 1st respondent and reproduced in the sub-paragraph of paragraph 91 of the Petitioner's affidavit, I immediately brought to the notice of the Additional Solicitor General in charge of the subject and suggested him to summon the 3rd respondent to ascertain the basis on which such an incorrect note had been made. After the discussion with the 3rd respondent, I brought to the notice of Her Excellency the President, being the Minister of Defence, that an incorrect note had been made by the 1st respondent which had led to a protest by certain members of the Bar against the Attorney-General's Department. Her Excellency assured me she would call for a report from the IGP and take action in this matter." The 3rd respondent is Punya de Silva, DIG CID who till the arrest of Mr. Tilakeratne had an impeccable record as an outstanding and honest police officer.

It is impossible for a police officer to serve the police without even a breath of an allegation of dishonesty being made against him throughout his career. This Police Officer earned encomiums of the public and even the Bar which often confronted him. Though Mr. Silva reported Punya de Silva for having prevaricated his notes and that of other police officers who were present, Her Excellency did not pay any heed to the reference made by the Attorney General against Punya de Silva. When Sarath Silva denied having spoken to Punya de Silva about the arrest of Mr. Tilakeratne over the telephone, Punya de Silva was so disturbed that he went to Minister of Foreign Affairs Lakshman Kadirgamar and reported the matter. Mr. Kadirgamar presented the two versions to the President:- Punya de Silva's version that before arresting Mr. Tilakeratne he had telephoned Sarath Silva and got his permission, and Sarath Silva's version that Punya de Silva had never done so. The President has categorically stated that she tended to believe the version of Punya de Silva as against her own Attorney - General. But the Supreme Court thought otherwise. The President directed no inquiry against Punya de Silva or even Bandula Wickramasinghe who was transferred out of the CID and was appointed to the prestigious position of the Director of the Crimes Detective Bureau where we know he excelled in solving the ransom case involving business tycoon G.C. Wickremasinghe

The allegations made against the Police by the Attorney General were that the police had concocted the notes to put a false front and that the arrest was made under his direction. The Supreme Court says that this case is full of strange features, perhaps unheard of in the annals of our judicial history. The gravest and the most sordid feature is the allegation made by Sarath Silva as the Attorney General that the Police cooked up their notes to put him into difficulty. This allegation, now found to be true by the Supreme Court, would probably haunt the Judges of cases, where they had convicted and sentenced people to jail or to the gallows purely relying on police notes. Till yesterday, the police notes were gospel truth, to be accepted with no questions asked.

Mr. Tilakeratne's case was indeed the darkest blot on the Attorney General's Department and the Police Department. When Sarath Silva the Attorney General says the Police notes were concocted, did he ever care or consider the evidence recorded by the CID of a woman called Eugine Padmini. She was in my opinion, after Rohini Hathurusinghe of the Kobbekaduwa Commission, the biggest and the most formidable prevaricator. Did the Attorney General ever ponder how his Department could ever accept the statement of a woman whose presence at the scene of offence had been denied by even eye witnesses and at whose instance the CID made a statement 89 days after the incident? Is it not the most malicious, vicious prosecution launched by the Attorney-General's Department against a sitting High Court Judge? No lawyer in Colombo protested against he Attorney General's Department. They protested against Sarath N. Silva the Attorney General. They did so because they believed that he was personally responsible for the illegal and most reprehensible arrest of a High Court Judge which took place after the establishment of the Court structure in Sri Lanka. The Supreme Court has clearly found two police officers to be the violators and ordered personal compensation. This would stand as an object lesson to police officers who jump the gun to please their political masters. In future they must refrain from taking orders over the telephone. If the exigencies of circumstances necessitates the taking of such orders all police officers should in unison request the IGP to provide them with recorders so that instructions received over the telephone could be recorded.

In Singapore one is able to purchase a telephone for about Rs. 6,000/= local rupees. If the Police calls for tenders, much more sophisticated recorders could be procured for a much lower sum. If all the telephone lines are connected to these recorders no one would give illegal orders to police officers over the telephone. The credibility of the police is at a new low. But can anyone with any justification say that the credibility of the Attorney General's Department is higher than that of the Police? Mahanama Tilakeratne's case has exposed the deep abyss that the law enforcement agencies have fallen into.

When this foul and fabricated prosecution was launched by the Attorney-General's Department, Mr. Tilekeratne wrote to the head of the judiciary G.P.S. Silva, and requested the Chief Justice to grant him leave. The Chief Justice sent him on compulsory leave till the criminal prosecution was concluded. Immediately after the prosecution was concluded with Mr. Tilekeratne being discharged, the High Court judge wrote to the Chief Justice informing him of the outcome of the case. The Judicial Service Commission has written to the President requesting her to withdraw the letter sending the judge on compulsory retirement. It is expected that she would without any further delay send in the necessary communication to permit Mr. Tilekeratna to continue his judicial functions.

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