Hulftsdorp Hill

31st May 1998

Rajitha and the frame up

Of Judges, freedom, liberty and destiny

By Mudliyar

"Every Judge on his appointment discards all politics and all prejudices. You need have no fear. The Judges of England have always in the past - and always will be vigilant in guarding our freedoms. Someone must be trusted. Let it be Judges."- Lord Denning The Family Story.

Let all politicians know the hard way that the above dictum is true about the judges of the sub-continent. The people of the subcontinent may be poor, illiterate and their countries under developed, but their judges have consistently reinvigorated them with judgments that keep their hopes and aspirations of democracy alive. Occasionally they may encounter persons who with their biases, prejudices and politics, handpicked by the Executive to deliver judgments for purposes other than to serve justice, bring disrepute to the much hallowed institution and defile it. The people have found that they are a rare breed.

On the other hand, the rulers detest their independence, often try to muzzle them, either by organizing demonstrations against them, or stoning their houses and being openly hostile and critical of them. Those who are affected by the expression of judicial orders which mandate the rulers to act fairly, will behave abjectly and under the immunities conferred on them by the people and castigate the Judges for not permitting them to act as tin pot dictators. When the Judges resolutely act independently, then they will assay to wheedle the judges by extending invitations to wine and dine with them on the pretext of looking into their many grievances which had been purposely left unattended to by them. Then after retirement offers are made to those who are about to retire from exalted positions. A few may turn and become the source of glaring injustices as judges of many dictatorships of the proletariat, or other kinds, by upholding the rule of the state and thus becoming incapable, impotent and sterile.

But in the subcontinent the overtures made by the executive to coax the judges have failed, and the judges have remained above the petty political ideologies of political parties.. Narasimha Rao, and Mrs Bhutto would not have had to relinquish their office if not for a fiercely independent judiciary. Similarly in Sri Lanka Sirisena Cooray would still be languishing in jail if not for our Supreme Court. The Politicians which ever party they belong to or whatever ism they profess, will continue in the same dirty, low and loathsome manner they came into power, and the same yardstick they use to remain in power, to threaten, subjugate or stifle the judiciary.

Mahanama Tillekeratne High Court Judge, Colombo, acquitted Dr. Rajitha Senaratna, appointed M.P of the United National Party in a landmark judgment. The judge clearly stated that this was a case that had been a frame-up and concocted on false evidence to implicate Dr. Senaratne. It has become a common feature in some of the Commissions appointed by this government, that special investigating teams of these commissions do look for evidence to support a particular proposition which supports a theory of the commission. The investigating teams drawn from the police do everything degrading to elicit evidence to support this theory. It was suspected for a long time, in political cases the CID subverted the truth to find evidence to implicate political opponents of the government. Now a judge of the High Court Mr. Tillekeratna makes a determination in his judgment acquitting Dr. Rajitha Senaratna , that he determines that for reasons set out in his judgment it was made up to implicate the accused with the offence.

Dr. Rajitha Senaratne was indicted by the Attorney General before the High Court of Colombo, that he on the February, 28 1996 supplied the Sri Lanka Air Force 30 bottles of coal mould seal, a dental medicine knowing that the potency of the medicine had expired in October, 1996, but had fraudulently replaced the 11LABEL for the expiry date to read as October, 1998, thereby deceiving the complainant and causing a loss of Rs. 9,000/=.

The learned High Court Judge, Mr. Tilakeratne in a lengthy order running into sixty-seven pages has stated that the most important witness both for the prosecution and the defense was the evidence of Corporal Bandaranaike. Corporal Bandaranaike had written to the Attorney General saying the Chief Security Officer had told him to make a false statement that he had witnessed the removal of the 11LABELs which indicated the expiry date and replaced them with new 11LABELs.

When he subsequently protested about the statement, he was detained in solitary confinement and was taken to the CID to record his statement. Several officers threatened him and wanted him to make this false statement to the CID. The officers of the CID used various methods of coercion to record his statement and he was mentally pressurized. The officers, both of the CID and the Air Force, made various threats and said the life of his family was under serious jeopardy if he refused to give a false statement stating that Dr. Rajitha Senaratne, M.P. had told him that he would replace the expiry dates of the 11LABELs and re-supply the same medicine with new 11LABELs. He said "Then they took my statement and took me before the Magistrate, Maligakanda to make a confession on the false statement I had made to the CID. The Maligakanda Magistrate then questioned me and I told him the background and he found that on the report filed by the CID they had not implicated me and admonished the CID officers. I was then discharged.

Corporal Bandaranaike was called by the prosecution and was treated as an adverse witness. The learned High Court Judge had stated in his order that he had been threatened to state that the 11LABELs which contained the expiry dates on the bottles of the dental medicine were changed in front of him. If the witness refuses to make the false statement he and his family would fall into serious difficulty and he would never come to know what would become of his family. He had been threatened more than thirty times. When he was at China Bay, Trincomalee he had been threatened again. When he knew that these officers had got him to make a false statement on the peril of serious consequences to him and to his family they intended framing Dr. Rajitha Senaratne with the this alleged act of cheating. When he knew that by making this false statement that someone would fall into difficulty he prepared an affidavit giving the entire scenario and stating the truth. The learned High Court Judge has stated there was no doubt that Mr.Bandaranaike was threatened to falsely implicate the accused. In fact he has on several occasions informed Court that he was under threat.

His superior officer Dissanayake had framed charges against him. When Corporal Bandaranaike informed Court that he had been threatened by his officers to charge him; this was a direct interference with the proceedings of this Court, as all witnesses are witnesses of Court and have to be protected.

The prosecution, on several occasions during the course of the trial, had questioned Mr. Bandaranaike as to why he had not complained when he was threatened to make a false statement. The prosecution asked similar questions from the other witnesses. Mr. Bandaranaike should have remained silent as the other witnesses had the right to take action against him for not obeying their orders. As they have failed to do so I conclude that this is a fabricated case.

The affidavit of Corporal Bandaranaike and his subsequent letter to the Attorney General shows how keen and enthusiastic the CID was to prosecute Dr. Rajitha Senaratne. No officer of the Air Force or any other person complained to anyone that Dr. Senaratne had in fact supplied dental medicine where the expiry date had long passed. The DIG had initiated the investigation on an information that was received by him over the telephone and the total cost of medicine was only Rs. 9,000/=.

Top officials of the CID went on a long journey abroad costing the tax payer several lakhs of Rupees, to consult experts in order to find expert evidence to show the coal mould seal dental medicine was in fact out of date and could not be used. The efficiency and the urgency with which the CID worked on this matter clearly shows what a super efficient Department we have when it comes to finding evidence against the opponents of the Government. But when it comes to politicians of the Government, the reaction is so inert that it takes longer than a complex testamentary case.

Dr. Rajitha Senaratne is not an ordinary Member of Parliament. After the death of Vijaya Kumaratunga,Mrs. Kumaratunga went abroad and was living in England and was invited by Dr. Rajitha Senaratne at a hotel in Karachchi to take over the National leadership of the Left. The SLMP which contested under the USA had lost very badly.

Only Vasudeva Nanayakkara and Athauda Seneviratne had been elected. The SLMP could not obtain a single seat although the late Ossie Abeygoonasekera received the highest preferential votes in the Gampaha District . Dr. Rajitha was of the view that the USA lost the elections due to the lack of a National leader to lead the USA.

Though the others were not in favour, Dr. Rajitha invited Chandrika to takeover the National leadership. After four days of discussions at a hotel in Karachchi Chandrika was convinced. Later Rajitha broke off from the SLMP and formed his own Bahujana Nidahas Peramuna (BNP) and made Chandrika the leader of the BNP and Rajitha was the General Secretary.

It was the intention of Rajitha to make Chandrika the National leader of the left and unite them against the UNP and the SLFP. Later Chandrika joined her mother and the brother in the SLFP. Rajitha wanted to give up politics, but later on the invitation of President Wijetunga joined the UNP. Dr. Senaratne, with Mr.Sarath Kongahage are the most vocal critics of Mrs. Kumaratunga.

As Mr. Jeyaraj Fernandopulle pointed out during the AirLanka debate there were two cases pending against Dr. Rajitha Senaratne and Mr. Sarath Kongahage. The vituperative politics was so sinister that minister Mangala Samaraweera at the Cabinet news briefing discussed the cases that were pending against these two MPs.He was quite oblivious of the fact that at Hultsdorf, to a packed Court house filled with Members of Parliament of the UNP which included Mr. Anura Bandaranaike, Mr. Mahanama Tilakeratne, the High Court Judge, Western Province, was delivering a judgement acquitting Dr. Senaratne without even calling Dr. Senaratne to state his case. He was referring to the concocted fabricated evidence placed by the witnesses called by the prosecution to make Dr.Rajitha culpable of this crime. Dr. Rajitha is a dental Surgeon and has a long history of being actively involved in politics.

It is tragic that even at the behest of some petty politicians the CID acts with super speed to charge a professional for cheating when their star witness Corporal Bandaranaike had informed his higher officers, the CID and the Attorney General's Department that his statement indicating that he had witnessed the 11LABELs being replaced with other 11LABELs was false and was made by another official of the Air Force and his signature was obtained under severe duress.

We still can sigh a breath of relief that there are independent and fearless Judges who would ignore the personalities before them and deliver judgement on the merits of the case. If not for Mr. Tilakeratne who was the Chief Magistrate Matara, Mr. Mahinda Rajapaksa would not be a Minister of this Government. Mr. Mahinda Rajapaksa along with his supporters was charged with murder. A number of witnesses at the behest of the UNP Government or the political lord of the Matara district made confessions to the Matara Magistrate implicating Mr. Mahinda Rajapaksa with the alleged murder. This was at the height of the UNP power. There was no possibility of SLFP capturing power Party supporters like Mahinda Rajapaksa were at the receiving end. The late Mr. Thivanka Wickramasinghe, P.C. appeared for Mr. Mahinda Rajapaksa and obtained bail from Mr. Mahanama Tilakeratne who was the Magistrate at that time. A special prosecutor was sent from Colombo to appear for the non-summary inquiry. When bail was ordered the Attorney General did not appeal or try to revise the order to cancel the bail order of the learned Magistrate.

An interesting dialogue took place between the Court of Appeal Bench and Counsel appearing for Mr. Sirisena Cooray when his Application to quash the findings of the Special Presidential Commission of Inquiry came before the Court last Wednesday. This is an indication that this case is likely to break new legal ground. The issues involved fall within the spheres of both Constitutional and Criminal Law. The legal boundaries within which Commissions of Inquiry ought to operate are also likely to get laid down.

The Court of Appeal Bench comprised Justice H.S. Yapa and Justice Upali de Z. Gunawardene.

One ground of complaint by Mr.Cooray was that the Commission refused to hear his lawyers for the reason that he (who was abroad at the time) was not present in person. The Commission thereupon proceeded to issue a warrant for Mr. Cooray's arrest and also made a finding of Contempt against him and deprived him of his civic rights. The Commission also convicted him of conspiracy to murder the late Lalith Athulathmudali.

Justice Gunawardene inquired from Mr.Coorayí's Counsel whether appearance by lawyers did not amount to answering the summons of the Commission. He also raised the pertinent question whether a person could be convicted of contempt without first being heard.

Mr. Cooray's Counsel replied that these were some of the defects in the procedure adopted by the Commission that are being challenged.

Justice Yapa : Does a client not have the statutory right to appear through lawyers?

Are there not instances where an accused tried in absentia before the High Court has been permitted legal representation?

Choksy:Today it is also a Constitutional right under Article 13.

Justice Yapa: Can the Commission convict for contempt or is it only the Supreme Court?

Choksy :The Commission usurped the jurisdiction of the Supreme Court.

Justice Gunawardene: Did the Commission have the right to compel Cooray to teststify?

Choksy:Having first notified Cooray that he was a suspect, the Commission could not do that.

Justice Gunawardene: But since the Evidence Ordinance does not apply to Commissions, is the position different?

Choksy But the rules of fairness and process apply to Commissions also

Justice Gunawardene: You are referring to the right of an accused to remain silent?

Justice Yapa: Did not the Administration of Justice Law modify this rule?

Choksy: But the Judicature Act of 1978 contains no modification of the rule. Commissions cannot make a man both a suspect and a witness for the State or prosecution. To do so is to divert the proper administration of justice away from time tested rules of the criminal law.

Since the Chairman of the Commission was a Judge of the Supreme Court (Justice Tissa Bandaranaike) the Court of Appeal referred Mr. Cooray's application to the Supreme Court for decision as required by law.

Let's not forget that Our freedom, liberty and even our destiny are in the hands of Judges who cannot be corrupted by any King.

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