Year on the Web

30th March 1997

By Prof. C. Suriyakumaran

It is said that when Ho Chi Minh raised his banner, of resistance to the colonialists — then the French — he was still a liberal and his demands were simply liberal, and for human dignity. Certainly, they were not 'radical' as we know that word in its popular use.

It was the contempt with which this demand for dignity was received by his masters, and the treatment that was meted out to him and his fellow-workers, that drove him to take the stand that he came to adopt, and which he carried so victoriously against all comers, in a saga mixed as much with suffering as it was with glory.

There was a pathos and inevitability in all those years, which may have looked as though ordained by destiny, but were in fact the product of crass stupidity — the stupidity of the 'masters', right through to the end of the US occupation, to understand the nature of a simple, rightful truth.

In (then) Ceylon in the years after Independence, there were no ostensible 'external' masters, and all the trappings of democratic structures and processes indeed stood installed in the political fabric of its new and emerging society. It looked as if it were even unprincipled then to refer to these structures, whether in fact or in potential, as being discriminatory, offensive, or illiberal.

It was in this situation that the early seeds of minority resentment of, and alienation from, the majority rule that was the reality, came to see the light of day. It was during this period, under what was called the Donoughmore Constitution, that the major community proceeded to use its physical ability to run the Government at the centre with its own majority — the beginning of what I was to call in my writings from the 80s as "That 50-year democratic folly, of equating a parliamentary majority based on ethnicity with a majority based on issues." It produced, in those years itself, its own backlash, for which there were none among the majority community to read the message as it should have been — namely that a right to a minority is inherent, by nature, that it was not one to be 'granted' by a kind majority to a minority, but simply one to be recognised as there.

With that failure, those early years led to its first reactive outcome, the creation of 'The All Ceylon Tamil Congress,' led by the charismatic, eloquent and dynamic G.G. Ponnambalam (Snr.). Again, we shall pass over the high drama of the presentations before the Soulbury Commission and come to the dispensation that awaited the country on the eve of its first election, to the first Parliament of Independent Ceylon.

A galaxy of minority leaders had joined Ponnambalam. I was then, a young official, in the scene of those first elections in Jaffna and, along with other service colleagues, with considerable electoral responsibility in its conduct.

Among the array of candidates, under the Tamil Congress banner, was an unassuming, serious - even stern looking - gentleman, more at home in the sartorial comfort of Western attire, but was to slip as comfortably in later years into the Eastern. He was undoubtedly known to the Bar at Colombo - and known to me - for he was a lawyer of no mean repute, but his name in Jaffna, was certainly anything but 'household' at the time.

Yet it was not long, before people saw him for what he was. It became clear that he was there, in politics, not for position or power or glamour, but because there was a 'cause' to be served. The word 'service' was written on his face. And people soon began to realise that here, under the Tamil Congress, was a man who was probably something different from others, if not something slightly above them. It was this last aspect, now looking back, that was to emerge in the later days of the Tamil people's pursuit of their political aspirations. It was this 'baton' that Chelvanayakam was to carry later, all the time with his self-effacing quality, only and simply because it had to be done - or what he may have described, if told, simply as his 'dharma', his duty to do so. But we shall come to that shortly.

Prior to this, in the early and mid-forties, at the height of the Tamil Congress 'aura'. I as some others of my university level generation of those days, had been a witness, partly because of personal links, to the most favoured meeting place in Colombo for this political grouping, and to know the strength, and potential power, that the Congress Party surely wielded at the time. The highest in the land, of both majority and minority leaders would visit at this 'meeting ground', to try to even out disagreements, to explore common platforms, and to give assurance to each other of a post-Independence period towards which they were all working.

To be continued next week

In England the office of the Attorney-General dates back to the Middle Ages. The office began to assume its modern form in the16th Century. In the Middle Ages the Attorney was not a barrister, but a representative of his client in legal proceedings. The business of the crown was conducted by 'King's Attorneys'. They were first appointed only for particular business or particular cases or courts. In 1399 William de Lodington was appointed as "Kings Attorney" and was considered to be the first to be appointed as the Attorney-General for the crown. There was honour, prestige and glory associated with the office, yet the office was not free from blemish and scandal and could easily earn the wrath of the Sovereign, if the A.G. strove to be independent. The office of the Attorney-General in England was held by eminent persons like Sir Edward Coke and Francis Bacon. Some of these gentlemen were disgraced and removed by the Sovereign, and others, in order to preserve their position acted in the most abominable and servile manner to please the King. If on a rare occasion they acted independently they soon earned the wrath of the King. Others like Francis Bacon were even tried for bribery.

In England, as the office of the Attorney- General was also the traditional upholder of the Royal prerogative, for a long time he remained suspect with the commons, as an instrument of Royal influence in parliament. He sat in the House of Lords. The Solicitor-General was the first to acquire a seat in the House of Commons. The King expected the Attorney-General to be subservient. The Attorney-General unlike the other officer of the crown had to defend the action of the King in the House of Commons. There have been instances where in order to obtain a conviction in a trial for treason, he would lend himself to lead as true, confessions obtained by putting the victim to the rack.

Sir Edward Coke, who was distinguished as a great prosecutor, conducted a prosecution in a trial where Sir Walter Ralegh was charged with and later convicted for high treason. Lord Denning has to say this about the trial of Sir Walter Ralegh, "According to the law of evidence as we know it, the trial of Sir Walter Ralegh was outrageous. It was a travesty of justice. The conduct of the Attorney-General, Sir Edward Coke, was monstrous. Every bit of the evidence against Ralegh was inadmissible. It was all heresy, rumour and conjecture. Much of it was the evidence of a self-confessed accomplice. It was not corroborated in any respect." This example of the travesty of justice during the Middle Ages would fit in perfectly with the manner in which evidence is being led in some of the commissions sitting today.

The office of Attorney-General was held by many eminent legal luminaries who earned the highest respect of the judges and the members of the unofficial bar. The unofficial bar looks even at a young state counsel with admiration as most state counsel are of exceptionally good quality when compared to those of the private bar of the same vintage. They could do justice to their cause though pitted against the giants of the Bar mainly because the state counsel derive great pleasure in doing their duty for a salary which is considered a pittance, as against some members of the unofficial bar whose duty towards their clients are sometimes proportional to the amount of filthy lucre they could retrieve out of them as fees.

We had Attorneys-General who steadfastly refused to be directed by their masters and cherished the great traditions of independence, the department had developed over the years. Chief Justice Victor Tennekoon, who was a former Attorney-General, rebuffed the then Justice Minister Mr. Felix Dias when he invited the judges of the Supreme Court for the inauguration of the Supreme Court. The second incident that comes to my mind is where Shiva Pasupathi refused to indict Lalith Athulathmudali for throwing acid though such an indictment was recommended by the Public Prosecutor. When Mahinda Rajapaksha was accused of murder and remanded after the conclusion of the investigations the learned Magistrate on application released Mr. Rajapaksha on bail. The Attorney-General did not move the High Court for the cancellation of the bail order, neither did they move in revision to the Court of Appeal to determine the legality of the order of the Magistrate. This was at the height of the UNP regime. Later Mr. Rajapaksha was discharged and the order of the Magistrate was vindicated.

After the press published the manner in which a supervising officer handled the file of a suspect who was his brother-in-law, the A.G. called for a press conference and explained the position of the department. The A.G. after calling the conference stoutly defended the senior officer. It is a commonly held view that the reasoning given by the Attorney-General in defending the action of Rienzie Arsecularatne made the department look like the bumping bull of the Cassidys all of whose butter was in its horns. The legal circles are abuzz with the press interview, and a debate is taking place in the Hulftsdorp Hill about the merits and the demerits of the explanation given by the A.G. at the press conference. There were friends of the A.G. and Mr. Arsecularatne elected to high positions with a mission to establish an independent bar, who tried to gloss over the whole issue. Many senior lawyers who had been working in the department and who are out of the department, and judges who have been trained and nurtured in the high and noble traditions in the department, have expressed dismay at the reasoning given by the Attorney-General.

The Attorney-General put forward many reasons justifying the action of his officers. This was most unfortunate. Before anyone comes to any conclusion about the interview one must not forget the fact that the Attorney-General's department has not made an order discharging the accused. Most cases of fraud on cheques and sale of goods and other negotiable instrument, contracts border on disputes which are of essentially civil in nature. It is difficult to find good and convincing reasoning to justify charging or indicting a person on these civil disputes unless the evidence is very cogent and one draws an irresistible conclusion that a prima facie case of fraud is made out against the accused.

Most complaints of fraud, if they are more than Rs.500,000/-, are handled by the Criminal Investigations Department. The Criminal Investigations Department records statements, arrests the accused, produces them before a Magistrate, and eventually the suspects are released on bail. Then the file containing all the relevant material is sent to the Attorney-General's department for a decision. A decision of the Attorney-General's department to charge or indict the accused in court is a final decision. This decision cannot be appealed. If the Attorney-General's department decides, not to charge the accused for want of evidence, then the alternative remedy available to the complainant would be to file a private criminal prosecution. The decision of the Attorney-General's department is sometimes much more important than the decisions of a court of law where there is power of review against the order to a higher court. The Attorney-General's department has had a very healthy tradition where it gave directions either to discharge or charge an accused in court. Therefore, in the current case, if an order has been made that the accused should be discharged, then that would have been final and conclusive. Whatever allegations one could level against the department, it must be noted that they have not made any order to discharge the accused and if there is material, one could depend on the department to charge the accused in court.

The Attorney-General holds the firm view that there was no impropriety in the manner in which the D.S.G. handled the file, and went on to say that it was perfectly in order for a state counsel to continue making orders on a file where one of the parties involved in the crime may be either a relative or a friend of the officer, provided the state counsel makes an order adverse to the party concerned. This, I believe, was stated by the A.G. in the honest belief that no officer in his department, and specially a senior officer, would ever do anything which may tantamount to an illegal or unjust order. But the profession and the judges have always acted with great care not to get entangled in a debate whether it is proper or not to make decisions adverse or otherwise in a suit where one of the parties is known to them. This tradition has a long history. Nowhere could I lay my hands on any authority, legal or moral, where the converse of the aforesaid principle was followed. Lord Denning says "that a judge must not have the slightest interest in any case pending before him. Over a hundred years ago the Lord Chancellor of the day, Lord Cottenham, was a shareholder in the Grand Junction Canal Company. He had 92 shares in it. The Company had a dispute with Mr. Davies who claimed that the canal was his property. He placed a bar across it and threw bricks into it. The company applied for an injunction against the man. It was granted by the Vice-Chancellor and on appeal to Lord Cottenham the Lord Chancellor affirmed the decree. Lord Cottenham did not disclose that he was a share holder in the company. The House of Lords, after consulting the judges, held that the decree must be set aside. In the course of his speech Lord Campbell said: "No one can suppose that Lord Cottenham would be, in the remotest degree, influenced by interest that he had in this concern, but it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred."

Whenever one of the contentious parties is known to them, the members of the department have hitherto acted with rectitude and refused to make orders and have by such action earned the plaudits of the unofficial bar. Whenever there has been any doubt on the action of a state officer, the senior officers have inquired into these matters swiftly and corrective steps have been taken to preserve the good name of the department.

The Attorney-General himself on more than one occasion, adverted to the public perception of the department, that it is independent and is willing to act quite fearlessly. The officers of the department are expected by the public to be scrupulously honest, and would not act in any manner which cast aspersions on their integrity. A few years ago when Mr. Sunil De Silva was the A.G., Mr. C.R. De Silva got information from a senior lawyer that one of the young bright state counsel who was also a son of a senior lawyer had solicited a bribe from the lawyers client. It was a heroine case and the High Court is extremely cautious in granting bail. If the state objects to bail, in most cases depending on the quantity of heroine, the accused is kept in remand till the conclusion of the trial. The State Counsel was a fighter and a person who would not be overawed by the standing or the seniority of the opposing counsel, and when he objected for bail the chances of court releasing the accused on bail was extremely remote. Having come to know the difficult situation the client was in, he had independently of the counsel approached the state counsel, and counsel had demanded a bribe to consent for bail. After much deliberation and questioning the client and having satisfied the truth of the allegation he had casually mentioned this to Mr. C.R. De Silva, Mr. De Silva was so disturbed by the story that he immediately reported the matter to Mr. Thilak Marapana S.G. and Mr. Sunil De Silva A.G. The state counsel was summoned to the A.G.'s chambers and when he was questioned he first denied, and then was told that he had one of two choices, either to tender his resignation or to face an inquiry. After considering the possible alternatives, the Lord Chancellor tendered his resignation. The allegation may have been false. Clients are quite capable of making such allegations against judges, state counsel and against their own lawyers, when they do not get the order they want. There was a possibility that at a domestic inquiry the state counsel would have been exonerated. A.G. took this step, if not it would erode the confidence the members of the Bar had on the department. If the A.G. did not act in this manner it could be said that the A.G. was shielding his pet officer like the politicians.

During this period, another brother-in-law of a former state counsel was involved in a murder case. The state counsel was very popular, and a person who performed his duties with great honour. Several leading state counsel refused to handle the file as they knew it was their dear friend's brother-in-law. The A.G.'s department nevertheless decided to indict him for murder. It was alleged at that time that the very fact of the relationship the accused had with the ex state counsel went against him. If there was no relationship the department may have even entered nolle prosequi (non prosecution) as the evidence was very weak. The evidence had been concocted by the witnesses in order to get financial reward from the suspect. The A.G. had material to discharge him, but the public perception of the department was so important that the accused was indicted. It was a harrowing experience for the ex state counsel but the truth prevailed at the end. The accused was honorably discharged.

Then there was another brother-in-law, of another senior officer who was the complainant in a case of mischief. The police quite openly took the side of the accused and harassed the complainant. The supervising officer could have immediately directed the police to take meaningful steps against the accused. The fact that the complainant was his brother-in-law was sufficient for him to stay aloof in the matter without getting involved. He steadfastly refused to intervene and the police and the accused had a good time. The trial dragged on and finally the accused was convicted.

Then there is another police officer who has been quarreling with his brother-in-law, an Additional District Judge. Both in-laws are claiming that the other has infringed each other's rights and are fighting bitterly over property. This action is pending in the Primary Court and in the District Court. Both parties have filed their respective papers contradicting each other's position. They have gone to the Primary Court and to the District Court to determine this dispute. Now, if this brother-in-law who had become a bitter enemy of a judge is brought before the same judge on some other matter involving the brother-in-law and some other person, can this judge heeding to the interpretation of the A.G. hear and determine the dispute and make an order. He would then, I suppose, make an adverse order against his brother-in-law with pleasure. If questioned why he even dared to make such an order, and if he were to justify the stand on the basis that he followed the advice of the Attorney-General, what would the Judicial Service Commission say about it.

The rationale propounded by the A.G., that it is perfectly in order for an officer to handle a file of his relation provided that he was going to make an order adverse to his relation, if followed, I believe, would subject the system of justice to vicious calumny. Should we as reasonable men discard the principle enunciated by Lord Campbell about conflict interests of the judge and the parties concerned nearly 100 years ago and meticulously followed to date, in countries where there is the rule of the law is strictly adhered to in administering justice, and accept the new philosophy propounded by the A.G., or should we reject it as absolute heresy. I leave the judgement in your worthy hands, men of the world, who cannot be misdirected by those who plead the cause whose tongues are not confuted by their conscience.

Continue to the News/Comment page 5 - * Major: on a sticky wicket?, * Nothing shall bar my quest for justice: Romesh

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