Letters
View(s):Helping Hambantota case: Where politics and justice were mixed
Rohan Abeywardene (RA) and many others have expressed concerns over the Helping Hambantota case. This letter is to convey another aspect to this case.
Politicised rights
This case will go down in the annals of the Supreme Court with dubious distinction. This is a rights case, a human rights case, a fundamental rights case and a constitutional matter that has been politicised. The mischief to be cured was political. The judicial remedy applied was even more political, a curious admixture of justice and politics. This, in effect, is the admission of the ex- CJ Sarath Silva (SS). Law and justice can in this manner be easily set aside, as made plain here. Rule of law, much in the news today, can also wait for better days. It is unfortunate that this does not reflect well on the Supreme Court of this country which has had an illustrious tradition and heritage. This is not to detract from much done by the Supreme Court to check on abuse and excess, a fact to be grateful for when it did come.
But at least the admission of SS is honest. On the other hand there are rights decisions of the Supreme Court in which politics or political considerations weighed heavily on the rights determinations. These cases are those in which political notables figured in the case. Significantly, there have been no admissions or cross considerations in those cases. Instead there is much law terminology deployed which gives a legal cover to a decision otherwise arrived at. These observations are regretted because in fact the Supreme Court has rendered valuable service in so many cases to check abuse and excesses where the field is level, though less when the balance is uneven.
Confusion
Confusion helps. Such sleight of decision has the space in some mix-up. Primarily there is a muddle for manoeuvre between ‘guilty’ and ‘liability’ for violation of rights, between penalty fine and compensation, between due process and undue process. In the Ganeshanatham v. Vivienne Gunawardene case, [1984] 1 Sri LR 319 p 343, – The Judge said: that the “Sub-Inspector….was guilty of arresting the petitioner …by no means imposes or is intended to impose any punishment, penalty or liability on the petitioner”. The same Judge added: “when a punishment, penalty or liability has to be imposed on a person, whether he be a party or witness, the law would generally require that person concern be apprised of the charge, allegation or complaint against him, and he be afforded an opportunity of giving an explanation” [p 323 (15)]. The confusion in many subsequent cases is between, guilty for conviction and punishment, between liability of the State for violation of rights and individual liability, and for compensation by the State and compensation by the miscreant officer.
Heavy penalties
The imposition of heavy penalties on police officers in this Hambantota case is the other problem raised by RA. Justice does not stand tall, nor gain height from deterrent exemplary punishment imposed by the Supreme Court in rights cases. The order of Court is that the penalty is payable personally by the police officer. This order is to serve as a warning to others. Such imposition of fines smacks of some contempt and disregard of fair computation under rules of law. These fail even commonsense. The penalty imposed is in figures neatly rounded off, unrelated to the officers’ known income. Rumour has it that payment is made in reciprocal tone and measure.
Conflict of law
As evident from the run of Rights cases, and this Helping Hambantota case in particular, Rights law and criminal law are at cross purposes, one with each other. Criminal law is easily dispensed with, as seen, under the overbearing rights law. The two are in blatant conflict. In this case the criminal law has been dismissed with not even by leave, a means which itself would be arbitrary and capricious, possibly male fide, the very stuff of rights violation. The clearest instance was in the Tissa Kumara v. IP Premalal de Silva. In this case the respondent was held by Supreme Court to have violated rights by torture. In the criminal case of torture, the High Court found the police officer not guilty of torture, the evidence and the witnesses in both cases being the very same.
In the Hambantota case, the police officers are held to have seriously violated rights when they were only investigating a matter under the criminal law. The Magistrate saw no violation of any sort on the part of the police officers and their investigation, which the Supreme Court found. In fact a prima facie case had been made before the Magistrate. Therefore the decision in the Hambantota case can only have been made without any regard to the evidence and the process to consider any remiss on the part of the police officers before imposing penalties. No charge made, no explanation of the officer is considered required process.
Whose rights then?
In truth such considerations as conflict of law, evidence and process, do not hold back political determinations in rights cases. Then Right is not quite right; as much democracy today is not democratic. Whose rights are then violated? What of the rights of the political victim, or rights of the victim of crime?
Will the new law proposed for Protection of Victims and Witnesses help?
Frank de Silva
Narahenpita
Shining sparklers on ST letters page
There were some shining sparklers in the Sunday Times (Page 2 of Plus) of November 16. They shine in the otherwise bleak firmament of ours — politically, socially and administratively.
One such sparkler hailed the formation of the Sri Lanka Association of Geriatric Practitioners (SLAGP). It is a long-felt need in a country with a rapidly aging population. It speaks well of those caring practitioners. What is often said to senior citizens is: “Learn to put up with it”. What is unsaid is, “this old codger won’t last long. Why waste time and drugs on him”. If so why not think of the tender disposal of incurables living past the Biblical span or why not think of euthanasia? It appears to be that maladies outrun the remedies like criminals being ahead of crime busters.
The second is the letter from Perth commending the timely action by our Police. Their action is not a rare phenomenon but something that is taken for granted. It is true to say, leave them alone and they will deliver the goods. They will ensure people only live in civilised (cultured and crime-free) environment — sans militarisation, politicisation, and imposing impunity and so on. Weeding is a must to enable the good crop (cop) to thrive. What is preferred is the hand weeding by experienced farm hands and not the indiscriminate spraying of weedicides and insecticides. The latter is asinine and not a genuine input.
This was the third one: Law as an ass is focusing on pertinent issues may be like “all professions are a conspiracy against humanity” or “making commonsense more difficult”.
R. Suntharalingam
The super stink at Moor Road
The backyard of the supermarket at the top of the Moor Road in Wellawatte stinks with rotten vegetables, fish, fruits and other perishable commodities thrown into a garbage dump, much to the great inconvenience of residents and pedestrians.
A church and a nursery are located in the supermarket’s backyard while an educational institute and a hospital are also in the neighbourhood. Although this was brought to the notice of the management on several occasions, nothing is being done to clean up the place. Often trucks bringing fish and vegetables to the supermarket discharge dirty water that flows down Moor Road.
These big vehicles have also become a nuisance to pedestrians and motorists using Moor Road which is not wide and not meant for heavy vehicles.
Will the relevant authorities take immediate action to put an end to this nuisance and help the residents live in a clean environment?
Perera
Via email
Poor stamped by post and price hikes
I am a retired Postmaster drawing a ‘huge’ pension of Rs. 16,700. Yet, I am careful not to use a Mercedes, not to air-condition my room and not to wine and dine at five star hotels. That’s my life even though I am favoured with such a huge pension.
I write this in reference to the recent postage increases. Decades back, a letter was posted for ten cents, a postcard five cents and registration twenty five cents. I don’t expect the same rates to remain but Rs. 10 for an ordinary letter is far too high. Today postal services are gradually becoming redundant. It is largely the poor people who depend on the postal services. Others use e-mail, Facebook, mobile phones and other social media facilities to communicate with each other. Therefore, the unreasonable increase in postal charges only affects the poor.
Super highways, flyovers and garden cities benefit the rich – not the poor masses. What’s the logic in wearing a fine suit with an empty stomach? Increasing the duty levy recently on essentials such as milk powder, onions, and potatoes ostensibly to protect local farmers is ridiculous.
Sri Lanka is still a third world country with begging bowl in hand but this government is out to cater for the Lamborghinis, Humvees, Mercs and BMWs. God save the suffering masses!
MSAM
Dehiwela
Mosquitoes breed in municipal drains
A headline of an article in the Sunday Times of November 9 said: Double trouble from dengue despite campaigns. The campaign consisted of visiting homes and checking for all possible places where mosquitoes could breed.
However, municipal drains are not checked. Running along Polhengoda Road (Vijaya Kumaranatunga Mawatha) is a large drain that has not been cleared for several years. During rainy days, the drain with its stagnant water becomes an ideal place for mosquito breeding. Large plants over 6 to 8ft high in the drain provide resting places for mosquitoes during the day time. In my opinion more than 50 per cent of the mosquitoes in Colombo breed in these municipal drains.
Resident
Colombo 5
Sathasivam case: A Lake House court reporter recalls
I read the articles on the Sathasivam case published in the Sunday Times with great interest.
My special interest was my being the sole Lake House Correspondent for Mount Lavinia during that period and my duty was reporting court cases.
After the Courts adjourned I used to have a friendly chat with Mr. Sathasivam and we cultivated a sincere friendship.
He used to sit on a bench outside the Court cell and the boy William on a bench inside the cell.
Our conversation was only a friendly chat and no discussion about the case, but still I remember without my asking him, him telling me on two occasions, pointing out to the boy William “that one word from this chap will set me free”.
Sometime after the case I remember meeting the late Dr. W.D.L. Fernando, the JMO Colombo at the time. We discussed the case, he told me that he examined both Mr. Sathasivam and the boy William.
There was not a single scratch mark on his body whilst William had nail marks on his face.
L.V.R. Fernando
Mount Lavinia