Hulftsdorp Hill

3rd May 1998

A mockery of principles of justice

By Mudliyar

Nearly three hundred years ago Robert Knox, a sailor in the service of the English East India Company, was captured by the King of Kandy and was detained for nearly twenty years. In 1681 Robert Knox wrote an account of Sri Lanka and titled it Historical Relations of Ceylon, and it was published in London.

Some Sri Lankans often quote chapter and verse from Robert Knox in order to show the less educated what an extraordinary people we were, but the more important accounts which reflect the true character of the Sri Lankan people are glossed over, as the truth is often bitter and unpalatable for those who believe in the supremacy of the Sri Lankan people.

This passage from Robert Knox shows us the true nature of our people, with regard to their ability to practice deception on others.

"They are crafty and treacherous, not to be trusted upon any protestations for their manner of speaking is very smooth and courteous, in so much that those who are unacquainted with their disposition and manners, may easily be deceived by them. For they make no account nor conscience of lying, neither is it any shame or disgrace to them, if they be catched in telling lies it is so customary. As for bearing witness for confirmation in any matters of doubt, a Christian word will be believed far beyond their own, because they make more conscience of their words."

This passage from Robert Knox is extremely important and relevant today, as from the inception of the Judicial system in this country, there was never an era like the present day where truth has become the greatest casualty. Honour and conscience were the least aspect to be valued in coming to certain determinations by certain bodies with a veneer of judicial righteousness.

Commissions have the power to punish political opponents by depriving them of their civic rights.

Though this was a grave punishment that could be imposed on persons including the opponents of the Government or politicians, the Government in appointing these Commissions knew without any contradiction that the Government was powerless to impose such punishments as it did not have the requisite two thirds majority in Parliament. Therefore, a tangible reason for appointing some Commissions was hopefully to use the Commission's findings to malign the politicians and their supporters. In doing so, often officers of State, including persons with great repute in the country for their honour and unimpeachable character, refused to swallow hook line and sinker the propositions of the Commissions.

Recently Justice Ninian Jayasuriya delivered an important judgment in relation to the rejection of testimony which is patently false.

One might wonder why I should dwell upon a matter which should be the fundamental principle in accepting or rejecting any testimony. But there has been such a mockery of this fundamental principle that it is feared that the public in general and the practitioners and even the minor Judiciary would be influenced by this farce so that they would feel the age of liars and deceivers had been born.

Justice Jayasuriya has reiterated this fundamental principle and stated how and why the testimony should be accepted or rejected by a Court of Law. In relation to a maintenance case regarding an illegitimate child, he said:

''The evidence of the defendant and his witness Jinasena when analysed and evaluated are contradictory and inconsistent in regard to two crucially important aspects. In the circumstances the learned Magistrate has applied the test of consistency and inconsistency inter se.

In view of these glaring inconsistencies in the testimony adduced inter se, the learned Judge has applied the test of consistency and inconsistency and rejected the evidence of the defendant as deliberately and intentionally false. This evidence taken in conjunction with the deliberate and intentional falsehood the defendant has uttered because the truth may give rise to certain incriminating inferences being drawn against him, throws an altogether incriminating and sinister complexion on the evidence.

He further states, ''Thus the statement comes within the ambit of Section 157 of the Evidence Ordinance insomuch that the statement was made at or about the time when the fact took place and in terms of the judgement pronounced by Justice Wimalaratne this statement though emanating from the applicant could be looked upon as corroboration of her evidence. The test of spontaneity and test of contemporaneity are sufficiently satisfied. The law in its wisdom requires that the statement should be made within a reasonable time. The test is whether it was made as early as could reasonably be expected in the circumstances whether there was or not time of tutoring or concoction.''

This judgment together with the observations of Robert Knox about the nature of our people to lie without any compunction which would least affect their conscience should be considered before any tribunal decides to make pronouncements of the guilt or otherwise of any person.

Subash Abeysekera was one of the star witnesses found by the Commission and by mainly basing on his testimony it rejected the observations and the findings of not only Scotland Yard but the JMO and the Government Analyst. Subash Abeysekera had lied with impunity about the school he attended as he was cross examined, he changed his testimony and it was found that the utterance that he attended D.S. Senanayake Vidyalaya was an absolute lie. He also informed the Commission that a few days before Lalith Athulathmudali was killed he was helping a friend of Sotthi Upali called Malu Nihal to distill illicit arrack. In answer to questions, Subash Abeysekera said.

Q: .On that day (on 20th April, 1993) you were transporting Malu Nihal's arrack?

A:Yes.

Q: Did you tell Malu Nihal that there was a boy like this? (according to his testimony Ragunathan was brought to Gothami Road on the 19th of April, 1993 when he was distilling illicit arrack of Malu Nihal)

A: I. did not tell him. Upali may have told him

Q: Did Malu Nihal come and see?

A: He may have seen. I did not see.

Later he admitted that on the day in question he was distilling Malu Nihal's arrack, but Malu Nihal did not participate but before that Malu Nihal told him to prepare for distilling. This witness admitted that Malu Nihal gave him instructions on that day to prepare and distill illicit arrack, but in actual fact Malu Nihal had been killed a month before on the 3rd of March, 1993.

Q: I have instructions that Malu Nihal was killed by Chinthaka on the 3rd of March, 1993 by shooting?

A: May be.

Q: Is it true?

A: .No answer.

I have brought this illustration from the proceedings of the Lalith Athulathmudali Commission to show that this witness was a compulsive liar in the same mould as Rohini Hathurusinghe.

The Commission however at page 160 of the Report observes "Counsel made much of a statement of Subash when he referred to Malu Nihal's liquor business even after he died. The Commission is unable to consider that as a major contradiction affecting his credibility.

"Subash explained that even after Malu Nihal's death people referred to the business as Malu Nihal's illicit liquor booth. We are quite satisfied with his explanation. It is quite natural. Cargills Limited has retained its name even after 50 years of British commercial interests leaving the island''. This is the conclusion of the Commission.

Justice A.C. Alles, a greatly respected Supreme Court Judge stated on the day he was elevated as the President of the Retired Judges Association "The situation becomes more complex when Judges of the Superior Courts are appointed on Commissions which have a political flavour such as Commissions relating to political assassinations or probing the conduct of political figures for abuse or misuse of power and or highly placed public officials for malpractice. In the case of such Commissions it would be almost impossible to disentangle the issues from subjects of political controversy which would impinge on the independence of the Commissioners."

The findings of Commissions are being criticised as the opposition feels that these are inquires conducted with one motive, and often the conclusions are predetermined and evidence found to fit these determinations. The United National Party is in a quandary as to what steps they ought to take on the determination of the Corruption and Malpractices Commission (It must be said that no allegations have been made by any one on the manner this commission conducted its affairs). No one not even Wijeyapala Mendis has denied the fact that he exchanged land and benefitted by such an exchange. That is why he agreed to give back the land that he has taken.

Nonetheless the UNP will have to take a stand on the Commissions. K. N. Choksy one of the foremost constitutional lawyers in this country expressed his opinion to the Working Committee of the UNP and said Sri Lanka's Constitution is based on the rule of law and the administration of justice by and through an established judicial system. Findings of guilt and innocence can only be made by the Regular Courts where the Laws of Evidence apply and there is the right to appeal to the Superior Courts. Findings made by ad hoc Commissions appointed by the administration could never have the same acceptance by the general public as that of a finding on a charge made and established before a court of law.

The Special Presidential Commission of Inquiry law was passed before the enactment of the present Constitution of 1978.

Such a law could not be passed today. It would be challenged and struck down as being unconstitutional and contrary to the rule of law and the administration of justice as contemplated in the Constitution.

He said that the mere fact that this law had been enacted by the UNP can no longer stand in the way of the Party nevertheless opposing the appointment of such Commissions. The law was enacted 20 years ago during President Jayewardene's regime. President Jayewardene was the only UNP leader to make use of this law. The last Commission was appointed by him in the year 1987. Even at the time the law was enacted, it was strongly opposed by professional organisations and other Public Interest Organisations which advocated justice according to law.'

Mr. Choksy pointed out that since 1988 there has been a change of thinking within the U.N.P. itself. No Special Presidential Commission was appointed by either President Premadasa or President Wijetunga. When the then opposition in the year 1992 demanded the appointment of a Commission of Inquiry to inquire into the murder of Richard de Soysa, the U.N.P. took the stand in Parliament that the Courts of Law were the correct forum. In 1994 also, he as Minister of Constitutional Affairs opposed a decision made by the Cabinet; a demand made in Parliament by Nimal Siripala De Silva for the appointment of a Special Presidential Commission.

Further development took place with the election of the present Government in 1994. The new law establishing a Permanent Commission to investigate and prosecute allegations of bribery and corruption was passed by Parliament. The new law came about in consequence of consensus reached between the parties in Parliament. Otherwise, it could not have been passed as certain of its provisions required a two-thirds majority. The thinking behind this new law which found acceptance with all the political parties in Parliament was that all trials would be before the regular courts according to normal legal procedures. Any person could therefore be found guilty and convicted only by a court and not by a Commission of Inquiry.

In introducing this new law in Parliament, the present Minister of Justice and Constitutional Affairs is on record as having stated that the Government is against trial by Commissions and stood for trial before the regular courts.

No doubt, after the new law was passed, the Government proceeded to appoint Commissions of Inquiry. But nevertheless the policy followed by the U.N.P. of not appointing Commissions during the period 1987 to 1994, and the fact that it supported the new law in 1994, gives the Party justification to review in principle and decide whether or not it will support Parliamentary resolutions to deprive a person of his civic rights based on the findings of a Commission.

Drawing a parallel with the United Kingdom on whose legal system our judicial system is based, Mr. Choksy pointed out that for the last fifty years no Commission of Inquiry has been set up in the United Kingdom to pronounce on the guilt or innocence of a subject.

The last such Commission which was appointed in the year 1947 to investigate allegations of bribery made against British Members of Parliament ran into severe public opposition. Since then, such matters have been left exclusively to the Courts in Britain.

Any body who cherishes the fundamental freedoms and the rule of law must without contradiction oppose Special Presidential Commissions, which were formulated by J. R. Jayewardene knowing very well that under the proportional representation system no party would be able to command 2/3rds majority in Parliament and thus only he and he only could use this draconian laws to punish his opponents.

Jungle Telegraph

Editorial/Opinion Contents