PARLIAMENT

Fireworks herald New Year in Parliament

By Dilrukshi Handunneti, Lobby Correspondent

With a penchant for plummeting from the sublime to the ridiculous, our Legislature perhaps qualifies as the embodiment of what Orwell spoke of, and naturally, all that lunacy which goes into making our legislature may not change in a hurry. Though hope springs eternal- specially at the beginning of a year, it was no surprise to witness the general indiscipline- destruction of parliamentary property and the liberal use of abusive language during the week.

The drama unfolded quite early with the JVPers being eager beavers to launch their protest within the safe confines of the House on Wednesday after the wrathful reception they received on Monday. The morning lethargy was forgotten as the smarting JVP recreated the Lipton Circus atmosphere with slogan shouting and banner displays and causing Speaker Anura Bandaranaike to start the year with a suspension of sittings. 

If that was an inauspicious start, Thursday's emergency debate drew nothing but blood. The morning session was deceptively quiet, barring Mahinda Samarasinghe's intervention which embarrassed Minister Ratwatte who prides himself on his military feats. Mr. Samarasinghe queried as to why the President gazetted pradeshiya sabhas under the Public Security Ordinance when there was no specific reference under the PSO for the President to make orders regarding the commencement of dates of pradeshiya sabhas. A hush fell as the minister reluctantly claimed that the specified areas being under LTTE control were four districts and 14 pradeshiya sabhas.

Feathers remained unruffled until JVP cannon Wimal Weerawansa began to fire and this when the House was agog with the news of Norwegian special envoy Erik Solheim visit to the Legislature. Unaffected by the general trend of digressing, Weerawansa's contention was that there was no national plan to counter resolve the ethnic issue while the government was pressed between two extremes- peace talks representing imperial interest and war effort to attract the war psychosis of Sinhalese hard-liners.

Riding the JVP's hobby horse, the arty leftist had no good word for Norway. These countries strengthen their centres and advocate the merits of power devolution to other nations. Then there's Minister Ratwatte beating war drums while others go on peace marches with the government being a puppet in the hands of promoters of federalism, he said. "Our dilemma is this. You cannot accept Eelam outrightly, hence there's the installment basis recognition. So you gradually accept the traditional homeland concept by empowering the LTTE in phases. Those with LTTE interests at heart tell us how to govern, the catch word being 'restructuring', and we go with the begging bowl and are made to eat humble pie. They have no love for us, but are interested in the oil tanks in Trincomalee, the Eastern beaches and the general robbing of this country's resources," he thundered, adding that for some, the war was a blessing while for others, it was actually their daily bread and butter. The anti Norwegian feeling ran high, and it reached a climax when Sihala Urumaya member Tilak Karunaratne decided to lambast Solheim- going to the extreme of critiquing his personal life. Injecting some life to a yawn of a debate which the UNP as the main opposition could not extract the benefit of, the Sinhala hard-liner thundered that Solheim deserved nothing but stiff opposition. 

" He made startling revelations about his sexual life in his autobiography and revealed details of his divorce for money. A philanderer and an immoral creature sans honour and dignity he should not even be entertained on home soil, leave alone get involved with our country's most serious issue" he charged. And the Speaker, a seasoned politician with tonnes of diplomacy decided to gently warn the raging MP that Mr. Solheim was actually in Parliament. "Are you embarrassed by this Sir?" queried Mr. Bandaranaike's former loyalist, and the Speaker emphatically shook his head- adding that a member definitely had a right to his say, and Mr. Karunaratne needed no more prodding to continue his zealous attack.

"All communities live in peace here. There is nothing we ourselves cannot solve. We don't need the intervention of a man who actively assisted the destruction of a Serb leader ," he sniped.

Rauf Hakeem during his days as deputy chairman of committees was a much loved man with a rare gift for smoothing ruffled feathers and maintaining order.

Sadly, he appeared to have compromised much for his political fortunes, and there was an air of despondency when he spoke on the Muslim dimension to the ethnic question and explained the decision to support the PA. " We are being unfairly criticized and dubbed as political two timers. We talked to the UNP, but the PA seemed a better option. We are no opportunists or political conspirators because we reduced the UNP's political clout in Amparai with a vibrant political programme" he explained.

There were misgivings about the LTTE's unilateral ceasefire and suddenly the focus was not on the war but as to who benefits from it. Some believed a cease-fire was a pre- condition while others viewed it as part of a hidden agenda. 

Do we need neutral parties to pave the way, or can we do it ourselves were the questions. And in this midst, the government going by past experiences seemed reluctant to seize the moment, he said, stressing that a window of opportunity appeared to be open due to a Herculean effort by Norway.

But the government contradicted this stance with Minister Richard Pathirane emotionally assuring the House that talks would be held while military operations were on, he said. The minister used his powerful thrust to ridicule the UNP saying when they had nothing to say they digressed. " The debate is on the emergency not the economy, not the development forum or the selection of a Kataragama Basnayake Nilame. This is not a budget discussion for you to come up with economic jargon" he sniped.

"Why is the PSD in Kataragama? Are they assisting the devale pooja" posed UNP's W.J.M. Lokubandara, who had the minister accusing the UNP of politicizing such appointments during its heyday, and now having the audacity to criticize the government.

" The UNP has no shame. It is a party that rejoiced when Elephant Pass fall, and are today reduced to eating humble pie as military gains increase. The ACTC member spoke like Prabhakaran's spokesman today, but are you forgetting all the Tamil leaders that have been killed by the LTTE, the Kent Farm and Aranthalawa massacres? Have you instructed the LTTE not to kill innocent civilians? We shall fight till Prabha falls" he breathed.

But UNP's Ravi Karunanayake had a question. If the government wanted to wage war to the bitter end, so be it. But then was Erik Solheim here on a holiday?," he asked. This had the government benches getting activated and attempting to shout him down.

Minister Pathirana spoke like a military spokesman, but the unpalatable truth was while the PA slander machine worked overtime, it was none other than minister Ratwatte himself who was holidaying in Nuwara Eliya as Elephant Pass fell!

"Unlike you, we speak with a cohesive voice and don't believe in the 'peace at any cost. You have no discipline, no plan and the PA was born to lie" he breathed, as cat calls and jeers intensified, and the House for a moment resembled the Manning market with members crying themselves hoarse.

" You have no shame" shrieked his former PA colleagues , and he immediately rubbed salt on the PA with a curt: " I'd rather be a backbencher in the UNP than a Cabinet Minister in that stinking garbage pile called the PA." The House seemed over heated by the time JVP's Nandana Gunathileke dubbed Erik Solheim a conspirator on a mission to subvert supremacy, and demanded his immediate departure from here. But Minister Ratwatte's concluding remarks had no beginning- as he was shouted down right from the beginning which culminated in the hurried passing of items as the House converted itself into a battle field as flying objects like tumblers landed at the feet of opposition members and verbal abuse, took a new dimension. Minister Ratwatte had just ten minutes, but the local version of Erskine May, UNP's A.H.M. Azwer dredged out yet another of his many queries which are usually raised for pure mischief, and all hell broke loose.

As the din increased, members from both sides sprang to their feet and exchanged verbal blows- and Ratwatte seemed defenseless momentarily. 

But he threw political caution to the wind and declared that he would never ever reply queries raised in the House hereafter- amidst government cheers and thunderous protests by the UNP.

" You raise a million questions, but I am denied my time to reply.. If that be so, have your say but there shall never be any answers" breathed an angry minister Ratwatte,

Amidst feline and bovine kinds being insulted with excessive legislative use, an enraged deputy minister of Buddhasasana, Ediriweera Premaratne hurled a headphone at UNP frontliners. Pandemonium reigned as government benchers chorused protests and screamed, while equally unruly UNP protests also grew to a crescendo leaving the Speaker exasperated and spent. 

Gamini Atukorale angrily waved a headphone, while Gamini Jayawickreme Perera held a tumbler in hand and A.H.M. Azwer melodramatically made claims of injuries. The affable Speaker was indeed an embarrassed man, profusely apologizing to the 'victims' on the UNP side as the din increased. 

Focus on Rights

Enforcing 'equality of arms' in criminal trials 

By: Kishali Pinto Jayawardene

Doubtless, they yielded. This is the tragic sameness of the story through the ages when a nation becomes sullen, its rulers beyond any form of discipline and institutions that are meant to act as a check upon state authority such as the judiciary and civil society spectacularly collapse along with the rest. 

In an age therefore where laxity and levity has become commonplace, judgments that challenge this dismal tide warrant notice. This column focuses this week, on a particular decision of the Supreme Court of this country in December last year. This judgment has gone largely unremarked as of yet and perhaps understandably so in a month preoccupied not only with ostrich-like seasonal fun but also hotly contested issues of medical negligence and rape. 

But, the case of Danwatte Liyanage Wijepala Vs the Attorney General is interesting for more reasons than one. In the first instance, the judgment is undoubtedly important with regard to the manner in which the Court of Appeal should evaluate evidence coming before it on the guilt of an accused in criminal appeals. In the second instance, it demonstrates an innovative linking up of the fundamental rights of an accused person to a fair trial with established principles of criminal law in reasoning that demands closer scrutiny by rights activists in this country. 

Twelve years ago, Wijepala and his brother Carolis were charged with the murder of one Siripala and tried before the Panadura High Court. The sole eye witness was Siripala's father, Senaratne. Senaratne claimed to have been walking alongside his son on the night in question and testified that an exchange of words took place between his son and Wijepala together with Carolis and five others. Following this verbal exchange, the father and son continued to walk on but the father had then seen Wijepala running towards his son and stabbing him. 

When Carolis had shouted that the father should not escape as well, Senaratne had taken to his heels and hidden in the thicket nearby until some time lapsed. Thereafter, he had gone back to where his son lay on the road and had taken him to hospital where later he had died. 

This was the sum total of Senaratne's story that was believed by the trial judge. Wijepala was convicted of the lesser offence of culpable homicide not amounting to murder and sentenced to ten years rigorous imprisonment. Carolis was acquitted. The trial judge's assessment of Senaratne's testimony was upheld meanwhile by the Court of Appeal and his conviction and sentence affirmed. 

When the accused, Wijepala appealed therefrom to the Supreme Court in the normal course of criminal appeals, an interesting picture however unfolded resulting in a bench comprising Justices Mark Fernando, S.W.B. Wadugodapitiya and Ameer Ismail setting aside the conviction and acquitting Wijepala.

Concurring judgments delivered by Justices Fernando and Ismail articulate two separate grounds as to why the conviction had to be set aside. Evaluating distinct aspects of Senaratne's evidence, the Court in the reasoning of Justice Ismail, disagreed with the thinking of the lower courts that his evidence was trustworthy enough to sustain a conviction. Instead, significant discrepancies arose in what he claimed to have seen and heard. 

The Supreme Court asserted the established rule that the evidence of a single witness, if cogent and impressive, can be acted upon by a Court but whenever there are circumstances of suspicion, then corroboration may be necessary. In this case however, Senaratne's evidence was not even barely supported by other evidence, direct or circumstantial. The Court of Appeal meanwhile, erred in declining to interfere with the finding of the trial judge on the basis that the appellate court is not entitled to engage in a re-appraisal and re-trial on questions of fact which come up before a judge in his capacity as "the trier of facts." 

While this approach may well be correct when an appellate court is considering a charge to a jury, it would be different where a trial before a judge sitting alone is concerned. Here, while the decision of the trial judge on questions of fact based on the demeanor and credibility of witnesses carry great weight, an appellate court must test the evidence in the case to a close scrutiny and if thereby a doubt is cast on the guilt of an accused, the benefit of that doubt should be given to him. This was so in the present case and Wijepala's conviction had therefore to be set aside. 

Agreeing with this view, Justice Fernando adduces a distinct reason as to why the conviction could not stand. This revolves round the first information given by Senaratne as to the stabbing of his son. The contents of this statement would have been crucial as regards Senaratne's assertions that he saw the stabbing and could identify the assailant. 

Senaratne claimed that at 9.30 pm. he had made a statement to the police post at the hospital. However, it was his later statement to the Anguruwathota police which the prosecution sought to put forward as his first information, which attempt had been however disallowed by the court. Whichever way it went however, problems arose regarding the believability of Senaratne's evidence. On the one hand, if only the later statement was the first information, then the Court of Appeal erred in concluding that Senaratne had made a statement at the earliest opportunity. This impacted once again on the credibility of his evidence that he made an earlier statement at 9.30 pm.

On the other hand, if he was truthful in claiming that he made a statement at 9.30 pm, the question arises as to where exactly that statement was. The Supreme Court was, in other words, perturbed about the fact that this 9.30 pm statement had not been annexed with the documents listed in the indictment nor included in the documents supplied to the defence in terms of the law. 

Evaluating the whole, the Court concludes that failure to supply this document resulted in the impairment of Wijepala's right to a fair trial which is guaranteed to him under Article 13(3) of the Constitution. It is thus that the concept of "equality of arms" in a criminal trial is brought in, in a novel manner, under the protection of the Constitution.

The reasoning of the Court is decep tively uncomplicated. Article 13(3) of the Constitution not only entitles an accused to a right to legal representation at a trial before a competent court. It also entitles the accused to a fair trial and that would mean anything and everything necessary for a fair trial, including copies of statements made to the police by material witnesses. 

Interestingly, the Court applies South African law in this respect on the basis of the right to information read with the right to a fair trial. In the opinion of the Court, the fact that South Africa had an independent right to information does not make a difference as the right to a fair trial recognised by Article 13(3) of the Sri Lankan Constitution, in fact, includes the ancillary right to all information necessary for a fair trial.

Wijepala's judgment is meanwhile important in terms of the professional duties that it lays on prosecuting counsel where a constitutional right to a fair trial is concerned. Again, quoting South African law, the Supreme Court emphasises the principle that there is a general duty on the state to disclose to the defence all information which it intends to use and even which it does not intend to use but could assist the accused in his defence. 

This is however, subject to the limitation excluding privileged information and when information is delayed due to the investigation not being complete.

All in all, the failure to disclose to Wijepala, the existence and contents of the first information in the present case, possibly casting serious doubts on the credibility of Senaratne's evidence, may well have caused a miscarriage of justice. The reasoning of the Supreme Court in fact, lays open provocative possibilities of application of these same principles in the equality before the law guarantees in the Constitution. This would be in line with developed jurisprudence of the European Court of Human Rights. 

For the moment however, Wijepala's judgment further develops Article 13(3) which had, so far, been given somewhat stepmotherly treatment in the development of fundamental rights jurisprudence in this country. 

That it does so in the context of a normal criminal appeal is a decided and in the present context, an assuredly welcome twist to the tale.