3rd March 1996

Top lawyer calls for changes in SPC Act

An eminent lawyer has called for amendments in the Special Presidential Inquiry Act after pointing out a number of shortcomings in the Act.

Mr. Desmond Fernando, P.C, vice president of the International Commission of Jurists and the International Bar Association told 'The Sunday Times' that he would be writing to Prime Minister, Mrs. Sirimavo Bandaranaike pointing out the unsuitability of the Act and call for necessary amendments.

The Special Presidential Inquiry Act came into force in 1978 during former President J. R. Jayewardene's time. The Act was amended in 1986.

Mr. Fernando said press excerpts from the Vijaya Kumaratunga Commission report bring into sharp focus the unfair nature of the proceedings.

Mr. Fernando pointed out that Sri Lanka has been condemned by the Human Rights Committee of the UN for using commissions like the SPC.

"Sri Lanka has been condemned because this art violates the right to a fair trial as set out in Article 14 of the International Covenant on Civil and Political Rights', Mr. Fernando said in a separate statement.

Mr. Fernando referring to the Kumaratunga Commission gave his reasons why the proceedings were unfair, he said.

"The judges hearing it are neither independent nor impartial as they are selected by the executive. The executive of course means the ruling political party (in this case the judges in the Kumaratunga Inquiry were thus selected by the Head of the People's Alliance). This may be contrasted with the general rule which is followed, for example, in our Supreme Court that judges who hear particular cases are nominated by the Head of the Judiciary, namely the Chief Justice.

"Hearsay evidence is admissible by virtue of Article 7 (1) b of the Special Presidential Commissions Inquiry Act. This means that suspects under this Special Act get second class trials while those accused of murder, rape and other crimes get first class trials in the High Court and Magistrate's Court.

There is no appeal in these cases. This is a violation of Article 14 (5) of the International Covenant on Civil and Political Rights.

As recently as July 27, 1995 the United Nations Human Rights Committee commented adversely on the Special Presidential Commissions Inquiry Act at Paragraph 21 of it's Report. This is what the UN Human Rights Committee said:

"The provisions of the Special Presidential Commissions of Inquiry Act which permits the acceptance of evidence otherwise inadmissible in a court of law and which stipulates that any decision adopted by a commission established under the Act is final and conclusive and may not be called into question by any court and tribunal are matters of serious concern to the committee in view of the fact that the findings of these commissions can lead to a penalty of civic disability being imposed by Parliament on those subject to investigation." (UN Document CCPR C/79/Add 56).

"The government has failed to honour its obligation that it would observe International Human Rights Norms. Clearly it is the government's obligation to repeal the Special Presidential Commissions of Inquiry Act.

"This is all the more surprising because the first two people to suffer under this Act were Mrs. Sirimavo Bandaranaike, the present Prime Minister and the late Felix Dias Bandaranaike. Indeed in a judgment in a Writ Application successfully brought by the late Felix Dias Bandaranaike the then Chief Justice who presided over the Court that allowed the Application to stop the commission from functioning stated that "people would look askance at the findings of the Special Presidential Commissions."

"What is also shocking is that this commission failed to follow the "Salmon" rule which commissions of inquiry throughout the Commonwealth follow in order to ensure fairness. These rules were formulated by the Royal Commissions of Tribunals of Inquiry chaired by Lord Justice Salmon (Cmnd 3121 of 1966 published by Her Majesty's Stationery Office). Where a Commission decides not to follow the "Salmon" rules it says so and gives reason for not doing so. This has happened in one case in England.

"The present Minister of Justice, Dr. G. L. Peiris has not been a Human Rights activist and is not aware of important international instruments such as the International Convenant on Civil and Political Rights. It is thus the duty of all of us to draw the attention of highly respected and fair minded leaders such as Mrs. Sirimavo Bandaranaike and Mr. Dharmasiri Senanayake to this problem and to ask them to take appropriate action," the statement says.

Maharaja given time to file objections

The Maharaja Organisation, local partner for Nippon Telephone Telegraph International of Japan, has been granted time till April 2 to object to the suspension of the enjoining order issued earlier in a Telecom tender case.

The earlier order restrained Telecommunications Minister Mangala Samaraweera and Telecom Director General A. Manikkavasagar from granting license to operate telecommunications systems using the wireless loop technology.

There were three pre-qualification bidders for two license. Of the three bidding companies, Nippon Telephone Telegraph International was disqualified on a non-compliance clause. The successful bidders were Telia of Sweden whose local partner is Metropolitan Agency and Bell Canada represented by Browns.

The Maharaja Organisation had obtained an enjoining order from the District Court of Colombo preventing the Minister from granting the license to the two successful bidders. However this order was vacated by the Court of Appeal on February 22.