Hulftsdorp Hill

29th March1998

Keep the government in check

By Mudliyar

All young men have a tendency to rebel against injustice. When someone enters the legal profession as a young man he is confronted with injustice around him. The temple of justice is crumbling. The corrupt establishment has taken over. A young lawyer is often confronted with these tendencies, and he instantly responds to them often at the cost of his own future.

The bread and butter of a young lawyer practicing in the Magistrate's Court is a bail application. The poorest of the poor retain him as they cannot afford to retain a senior lawyer. In order to succeed, the young lawyer does not need to have any skill with the spoken word. His knowledge of the law does not often help him. As the judge is often overburdened with work, he has no time to listen to the legal aspect of the bail application. What is necessary is what the police have to say on the matter. "Are you objecting?" the judge would ask. "Yes sir". That is enough for most judges to remand the accused. The young lawyer is dumbfounded. The police sergeant promised him not to object. What happened? The clients are angry. They run hither and thither. A gentleman who is a professional 'Godaperakdoruwa' advises him.

"What is wrong with you? why did you retain him? It is much better if you retained a 'Goluwa'.

"Come I will retain a lawyer who will get bail for you''. The senior lawyer is retained. The next day a motion is filed. The Sergeant very kindly informs court that the investigations are over and the suspect is released on bail. The police must be a super efficient department to complete an investigation within two days. The bitter truth is learnt by the lawyer. The 'godaperakadoruwa' has retained a senior lawyer and the police sergeant. The young lawyer decides this is not the place for him. It is a dense jungle with vipers, cobras and predators. He decides to become a magistrate. After several years the young lawyer is recruited as a Magistrate. This is not a fable or a tall story. This is true of most judicial officers who join the Judiciary.

Mr Titus Cooray was the Magistrate at Panadura. He was informed that a suspect taken for questioning had died at the police station cell. It was in the evening. He proceeded to the mortuary. The body was lying on a table. Only a minor labourer was in charge. As there were no visible injuries Mr. Cooray with the help of his court clerk turned the body over and removed the clothing. He found injuries similar to criscross marks all over the body. He counted them. There were sixty-four in all.

Then he summoned the sergeant who produced the report and recorded his statement. The sergeant said that the suspect tried to escape from the police custody and the inspector arrested him and dealt two blows on his feet. Mr. Cooray examined the body again and found that there were no injuries on the feet, and all the injuries were on the suspect's body.

Next day he ordered the inspector to come before him and after having recorded his statement he remanded the inspector. This created such an impact that most lawyers who depend on the police for their living ganged up. It has become a virtual precedent that if a suspect is killed at the police station, often the police officers are bailed out. Only the brave will appear to watch the interests of the relatives of the deceased. The police retained a foremost criminal lawyer of that era. The Magistrate refused to grant bail, and the inspector was remanded.

This was in the year 1981. J. R. Jayewardene had come to power with a solemn pledge to establish a Dharmishta government and never to follow the 'Attanagalle Doctrine'

The preceding government of Mrs. Bandaranaike interfered with the police and used them as tools to harass political opponents. The people were so dismayed with the interference that they did not mind installing the U.N.P. even after Mr. Jayewardene proclaimed publicly after his victory that he would give the police a holiday for one week. What happened after victory is now history. There was absolute mayhem and violence gripped country. There were marauding green shirted thugs roaming the streets and burning the houses of SLFP supporters. I believe the present lawlessness began with the 'Dharmishta' era.

A few days later some youths were brought to Mr. Cooray's house to be remanded. He took the precaution of ordering the police to produce the suspects before him, without remanding the suspects whilst in the police jeep. When the suspects were produced he knew from his experience that these were young men who would not indulge in activities as reported by the police.

When Mr. Cooray spoke to them he found that these boys were from middle class families and had cast some remarks at the daughter of a powerful politician's close relative. Mr. Cooray did not approve of these activities but found that he could not remand them as the law did not permit him to do so. The police insisted that the suspects should be remanded, as there would be a grave threat to the breach of peace otherwise. Mr. Cooray became a little suspicious of this strenuous application, and questioned the suspects again and found that the suspects had been mercilessly assaulted by the politician's relative and a gang of thugs. He immediately released the suspects on bail and ordered the police to bring before him the relative of the politician who was responsible for having taken the law into his own hands. The order remanding the relative of the politician was sufficient to send shock waves through the town. Who is this young maverick who had the guts to remand a politician's relative? This rarely happens. Only the members of the opposition are remanded. This magistrate remanded an inspector and a politician's brother. ''Unbelievable'' the folks said.

Mr. Cooray was about to go to sleep with his family, when he found that there was unusual darkness outside. He thought that it may have been due to power failure which is a common thing even in the cities those days. Suddenly he found that some of the windowpanes crashed with a loud noise. It was an eerie sound and the place was in darkness. The other glass panes of the windows shattered and crashed to the ground. The Magistrates bungalow was an old sprawling mansion. Mr. Cooray knew that he was under a siege. The independence of the judiciary was under attack.

He ran to the telephone to contact his neighbour who was an Assistant Superintendent of Police. The telephone line had been cut. He saw some figures in the distance. His wife and children came running to him and the youngest hugged him in fear.

The Judicial officer had become a virtual prisoner in his own home, and he and his family were under a severe attack. Death was on the door step. He reacted instantly and told his family to roll along the ground to the back door, so that no one outside could notice any movement. They rolled and turned towards the garage, and as the garage door was closed they huddled into the car. They spent some anxious moments when the sound subsided. Mr. Cooray drove to the next door. The ASP was quite casual about the whole incident. He did not show any concern.

Mr. Cooray expected him to offer refuge to him and and his family to spend the night at his place. The young children were horrified by this incident. The mother had only one thought, the safety of her husband and children. After reporting the matter to the ASP Mr. Cooray had to go back and spend the night without any security. To date no one knows who was responsible for this incident, the police or the politicians. No inquires were conducted. No accused were arrested.

But there was one ray of hope. There was a Chief Justice who was appointed by the UNP to be a stooge, but acted with sturdy independence and protected his judicial officers from any political interference. If the judges performed their duties no politician could ever get them transferred. The judiciary may have suffered materially due to these confrontations with J.R. Jayewardene and Mr. Neville Samarakoon, but the country and the oppressed benefited at large.

Has the situation changed?. The people of this country were again cheated by the present government which promised to change the entire make up of the political ethos. Professor G.L. Peiris and Mr. Lakshman Kadirgamar and even the charisma of Mrs. Chandrika Bandaranaike Kumaratunga and her unknown qualities would have sent signals of peace, law and order to the people.

This government laments the tyre pyres and the extra judicial killings during the previous regime, when the entire country was under a siege. The democratic system was in the throes of being vanquished. I cannot think of any government acting differently.

Look at the Mai Lai massacre in Vietnam, and how the apostle of human rights, the U.S. army reacted. Then the Tienanmen massacre when the torch of democracy was snuffed out by the Chinese Communists. Thousands of student activists were killed.

But there is no JVP insurgency today. When the army goes berserk in Jaffna to protect its international image, the government goes into action immediately.

But what about the south? It is a crying shame for this government to point the accusing finger at the UNP, and justify the sins and commit the same crime in better style.

It must be said that there are thousands of Police officers who are law-abiding and refuse to carry out illegal orders of the politicians. They are not promoted, or in the operational areas.

There is need to have a political mass movement to educate the people regarding these manoeuvres by politicians to crush democracy in the country. If the Constitution needs an amendment, one of the most important amendments would be to establish an utterly independent police commission. The recruitment, transfer and disciplinary control of the police should be under this commission.

One of the most interesting speeches was made by Professor G.L. Peiris when he established the Bribery & Corruption Commission. What has happened to the commission?.

Every one knows that there are serious allegations of corruption against the members of the government. When the Commission was inquiring into such allegations and an allegation against the husband of the Director-General of the Commission there was an open confrontation between the Director-General and the Commissioners.

The President requested the Commissioners to resign and transferred the Director-General. The Commissioners refused to resign. The Commissioners stood their ground. The Commissioners knew that they cannot be removed by the President unless with the concurrence of Parliament. The Government as if to teach the Commission a lesson transferred all the police officers from the commission, making the commission a paper tiger.

If the intentions of the Government is deceitful even establishing an independent Police Commission could thwarted by a corrupt Government.

No one seems to bother. There is a saying that people get the government they deserve. There is no guarantee that the present opposition who seem to be agitated by the actions of the government will improve on what this government is doing.

The only salvation to check these abuses is to go before the Supreme Court and like in India keep the government in check. This is not a fool proof system. Neither is democracy. The People will have to devise methods to protect themselves from their politicians who in power soon become their enemy.

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