12th September 1999
The drama behind the closed doors
It is said that Mr. Lenin Ratnayake, the former Magistrate of Mahawa, got a raw deal at the inquiry conducted by the Committee comprising Court of Appeal judges who were delegated by the Judicial Service Commission to determine whether there was a prima facie case to frame charges against him.
One of the reasons cited in some quarters was that what really happened at the inquiry was never made public — that Mr. Lenin Ratnayake's counsel was not even permitted to cross examine the female witnesses who claimed that they were raped.
When the Ravaya first published this news item, this column took cudgels against this newspaper as we believed that this was a massive conspiracy to defame judges who had been forthright and dispensing justice without fear or favour. Inquiries by us revealed that Magistrate Ratnayake was a judicial officer who thought that society could be reformed by the spread of the Dhamma and people could be kept away from crime by establishing a close nexus with the temple and the police.
Certain information received by us revealed that allegations of rape could have been concocted by the wives of the accused who had been brought before Court as the Magistrate decided to deal with them according to law. We are privy to the information that litigants do make false complaints against judicial officers when orders go against them. In an adversarial system of Justice one party will always end up on the losing side and they are the first to complain, first against their lawyers, then against the judges who heard the case.
The narrative described in the tabloid where the magistrate was alleged to have taken the wife of a suspect to a Rest House and raped her, was too stupefying to be believed. It was like a bad Sinhala film where melodrama was the key to its success in the box-office, but repulsive to anyone with an iota of good taste.
Later, this tabloid went on publishing stories of the Magistrate having raped a woman inside his own chambers, while two other lawyers stood guard outside the closed door. This was like a story from the famous TV serial called the Fantasy Island. It was too fantastic to be believed.
I believe most discerning lawyers who read this news item dismissed it like another fable from Grimm's fairy tales.
Then a third news item appeared about the same Magistrate alleging that he had embezzled funds when he was a clerk at the Insurance Corporation.
The tabloid published documents from the Insurance Corporation relating to certain claims that had been paid by the Insurance Corporation where the cheque had been credited to the bank account of the Magistrate, who was then a claims clerk of the Corporation. Repeated publication of these news items had deep rooted ramification and dimensions which affected the honour, dignity and the esteem of judicial officers of this country.
Finally the Bar Association of Sri Lanka had to intervene. The past presidents were summoned to advise the then BASL President Romesh de Silva, P.C.
It was on their advice that a special committee was appointed by the JSC to probe these allegations — one against Mr. Ratnayake, the other against District Judge Upali Abeyratne. Every member of the Bar would have been relieved to know that three senior Judges of the Court of Appeal — Justice Yapa, Justice Weerasuriya and Justice Asoka de Silva — were in the Committee and all of them had considerable experience relating to criminal matters. Especially, Justice Weerasuriya who started his career as a magistrate.
When Mr. Ratnayake appeared before the JSC panel, its chairman Justice Hector Yapa informed him of the charges that could be framed on the evidence that has been recorded by it.
The witnesses who had testified on these charges had been exhaustively cross-examined by the President's Counsel who appeared for and on behalf of Mr. Ratnayake who gave evidence but did not submit himself to be cross examined by the prosecuting counsel. Later he withdrew from the inquiry.
The charges were:
"That you, whilst being the Magistrate of Mahawa, called a woman, an accused appearing before you, to your chambers through the help of a lawyer, and had sexual intercourse with her.
"When she fell ill on the same day, that you ordered her to be admitted to Mahawa Hospital, and on the next day took her to some place in a vehicle and pointing a pistol at her, frightened her and had sexual intercourse with her.
"That you took to the Gampola Rest House, the wife of, an accused before your court, under the pretext that a statement had to be recorded from her to release her husband on bail, and had sexual intercourse with her.
"That you failed to inform the Judicial Service Commission that you were a clerk employed at the Sri Lanka Insurance Corporation, and you were served with a charge sheet on six counts for cheating, and you were interdicted, and after a disciplinary inquiry you were found guilty of all six charges and dismissed from the service of the Sri Lanka Insurance Corporation, and by such failure to disclose the aforesaid information you secured a judicial appointment."
The fantasy relating to a sexual orgy as vividly picturised by Avant Garde, French film producers and Italian neo-realistic producers like Francois Truffaut, and Jan-Luc Godard, would have never found a script like what was being related in front of the three highly respected Judges. It was similar to the famous film on sexual suppression called 'Repulsion' produced by Roman Polanski.
When the poor woman had to explain the gory details of what happened inside the Chambers of the Mahawa Magistrate when two lawyers stood guard outside the closed door, she was reluctant to speak and was slow in telling her story of what happened inside the hallowed Chambers of a magistrate. The three Judges had to caution her.
The counsel for the prosecution began cross examining her.
Question: Now you are in front of three Judges. You are a married woman. We are also married. The other ladies present in the room are also married. You have to come out with the truth without hiding anything. What happened on that day?
Justice Silva: You must tell the truth.
Justice Yapa: You have to tell the truth, without feeling ashamed.
Justice Weerasuriya: We are all persons of good upbringing. Therefore you must tell the truth. Some witnesses pretend to be innocent when they give evidence. You must not do that. You must tell what happened. This inquiry is not to punish you. This is a social need. We are trying to find out whether the Temple of Justice has been desecrated or not. You are a married woman. You have grown up children. You have to tell the truth, the way that happened, without anybody's influence.
The witness then reluctantly came out with her account of what happened in the Chambers.
When the witness was cross-examined by Mr. Ratnayake's lawyer, she shed her fear and gave answers which may have never been elicited in examination in chief. If the object of examining a witness is to elicit the truth from the witness, then sometimes cross-examination of the witness helps to elicit the character, intelligence, courage, interest, bias, memory and other circumstances of the witness. At one stage the question was why the witness did not shout, when the magistrate approached her.
Question: Why didn't you shout?
Answer: I did not shout because I was frightened.
Question: You did not shout because you were frightened? But normally people shout only when they are frightened. Isn't it so?
Answer: No. Some shout because they are frightened, others remain dumb-founded in similar circumstances. Only the person who undergoes that trauma will know how he or she will react.
After she gained her strength, courage and composure she gave details of how she was raped by the magistrate when she was cross examined, not given in evidence in chief.
One expert has said that cross-examination is a double edged sword, it can cut the opposing witness but also commit hara-kiri, and disembowel the client of the cross-examining counsel. What is very strange is that Tissa Balalla, a senior practitioner in the Mahawa magistrate Court and Mr. Hussain, another senior practitioner testified as witnesses of the Committee, and corroborated the statement of this woman that she was all alone in the chamber of the magistrate and two lawyers were outside the chambers keeping guard.
The panel reported that all the charges framed at the preliminary inquiry were proved. The JSC decided to send Mr. Ratnayake on compulsory leave.
K.M.B.B. Kulatunga, as a Supreme Court Judge who always sat with the Chief Justice when the Chief Justice was presiding over the Supreme Court, and who had retired, stated the rules framed by the JSC did not permit a Judge who had faced a preliminary inquiry and was awaiting charges to be framed to be sent on compulsory leave. His contention was that such a judicial officer should be interdicted.
The JSC has submitted the findings to the Attorney-General to frame charges as has been the practice.
When Dsitrict Judge Abeyratne was summoned before the JSC on a complaint made by W. A. Jayasekera, the plaintiff in a divorce case who did not get a fair hearing, the charges were referred to the Attorney-General to be framed. It died a natural death at the Attorney-General's Department till it was revived by Mr. Jayasekera, and the media.
Similarly, when Justice Amir Ismail was the President of the Court of Appeal, the charge of Contempt of Court committed by a Police Officer in the Mahanama Tillakeratne case before the Kesbewa Magistrate was not referred to the Attorney-General, as the Attorney-General was involved in the arrest of the High Court Judge.
The Justices of the Court of Appeal decided to obtain the assistance of the Bar Association to frame charges and lead evidence at the inquiry.
We believe in the case of Mr. Abeyratne the charges were not framed by the Attorney-General. Mr. Ratnayake will continue to draw the salary of a magistrate until charges are framed by the Attorney-General's Department, and the disciplinary inquiry is concluded. Mr. Abeyratne on the other hand will administer Justice next year from Monaragala.
Now then we the people of Sri Lanka will have to be content with the notion that justice may not only be done but also may seem to be done according to the wishes of those in power.
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