Hulftsdorp Hill

24th May 1998

Where are the human rights crusaders?

By Mudliyar

It was Professor G.L. Pieris as the ex-Vice Chancellor of the Colombo University, who advocated the rule of law, transparency and ,made the elite believe in a new messiah in the PA. Professor Pieris travelled round the country exposing the breaches made by the UNP in administering justice.

He saw that one of the worst spectacles of judicial interference was when D.B. Wijetunga pardoned two convicts who were to be sentenced by the High Court. He expounded the virtues of natural justice and the rule of law and was of the view that these virtues which had been nurtured and fostered in democratic societies represented the essence of civilization. He was firmly convinced and strenuously articulated that trials and convictions of accused should be the exclusive preserve of legally and duly established Courts of Law . His learning did not permit the acceptance of ad hoc tribunals, commissions, or Special Presidential Commissions of inquiry .

He instinctively saw that tribunals which did not respect the laws of evidence, and adhoc Inquiries and Commissions established by the Executive to punish political opponents, were worse than convictions based on confessions, obtained by coercion and torture. The dark ages which fostered extra-judicial activities were based on barbaric tendencies of human beings which did not accept Courts of justice as a means to try opponents. This was the time the intellectuals of this country were virtually stunned by the speeches made by the Professor, exhibited a gift which lesser mortals could not even with practice emulate. His speeches before he became a member of the PA Government, had a genuine tinge of the sincerity of a person educated at the highest seats of learning, and his desire to contribute his learning to the development of a better political and judicial system in the country. His vehicle to achieve these altruistic goals was the PA .

After the victory of the PA Government at the parliamentary elections, Professor Pieris was the first Minister to introduce the first Bill as the Minister of External Trade, Justice and Constitutional Affairs. In introducing this Bill his intention was to eradicate bribery and corruption which had been the bane of Sri Lankan politics, for a number of decades. Bribery and corruption had spread its vicious tentacles to the highest political figure from the lowliest labourer and had become a way of life.

The Act to establish a Commission to investigate allegations of bribery and corruption had encompassed the spirit and the feeling of the masses that voted for the PA. They were of the firm view and belief that the PA Government would finally bury bribery corruption by the sheer will of its political leaders. The Commission that was to be established under the new Act had so much power and was independent. The new definition of corruption encompassed every conceivable gratification which included any payment, release, discharge or liquidation of any loan , obligation or other liability, money or any gift, loan, fee, reward or any commission, valuable security etc. etc. etc. It was so wide that Mr. Mahinda Rajapaksa jokingly told the Minister that if he is offered a cup of tea from his voter, that might be included in the new Bribery and Corruption Act.

In introducing this Bill Professor Pieris made an important policy statement. He said that the PA Government was opposed to any inquiry conducted under the Commissions of Inquiry Act and the Special Presidential Commissions of Inquiry Act. One of the reasons he gave to expose the draconian nature of the much maligned Special Commissions of Inquiry Act, was that it comes into operation when the President issues a warrant to inquire into matters referred to in the warrant.

He very correctly said that the President is a leader of a political party, and the leader of a political party has the power not only to issue a warrant but haphazardly withdraw that warrant.

This is what he said. "Honourable Deputy Speaker , this is the first bill presented to this Parliament by the People's Alliance government. Another difficulty is that certain inquiries have already been held in respect of bribery and corruption in this country under two Parliamentary Acts. Of them , the first was the Commissions of Inquiry Act; the other being the Special Presidential Commissions of Inquiry Act.

"Now there is a grave defect inherent in both these Acts. That defect is, under both the Acts, the one who is empowered to warrant inquiries is the President. The President is the leader of a Political Party. Just as much as he can issue the warrant to begin the conduct of inquiries, he can also dismiss them. He is also empowered to cancel the warrant at any given time. We don't think that is a satisfactory procedure. We believe, Mr. Deputy Speaker, in the rule of the law, in natural justice, in procedural fairness, in the presumption of innocence,and in the privilege against compulsory self-incrimination. We want a person who is accused of a crime in the country to have the full benefit of the laws of evidence. We are against administrative tribunals. We want the trials to be conducted before duly established courts of the Republic. These, to our minds, represent the essence of civilization and legal culture, and we are determined not to do anything that will detract from the thrust of these values which are necessary for a civilized society. That is why in this legislation we have endeavored genuinely and sincerely to strike a balance between these competing considerations, to arrive at a perceptive equilibrium which we believe to be for the benefit of the country as a whole."

He continued "A.C.S. Hameed pointed out that people in public life in our country are exposed to very considerable jeopardy and peril. There are reckless allegations that are hurled against them, and their good names are tarnished. Mr. Hameed pointed out it was of the utmost importance that persons of ability and integrity should be persuaded to take a vigorous part in the public life of our country. I agree entirely with that point of view.

"It is not a judicial proceeding at all. This is because we believe that adhoc tribunals purporting to dispense justice in these circumstances are incompatible with essential elements of public policy. So we do not believe in that approach to things at all."

Nearly three and a half years have passed after the PA came into power. Professor G.L. Peiris is still the Minister of Justice. A crusader of Human Rights, the Rule of Law, natural justice and equity, has been overtaken by the politician with Cabinet responsibilities, defending the Government with his usual oratorical skill. The speeches in parliament are mostly directed at the opposition who do not seem to understand a word of what he says. There is not a single member in the opposition who has achieved such goals in the realm of education as Minister Peiris

After President Chandrika Bandara-naike Kumaratunga replaced D.B. Wijetunga as the President of this country, she appointed three Commissions of Inquiry under the pernicious draconian and unethical Special Presidential Commissions of Inquiry Act, which had thrown lock, stock and barrel the basic principles of justice based on natural justice, presumption of innocence and the privileges against compulsory self incrimination. . Professor . G.L Peiris neither resigned from the Government, nor made any statement on the re-establishment of adhoc Tribunals purporting to dispense justice under those circumstances which were incompatible with the essential elements of public policy. These adhoc Commissions have used their powers to ridicule people in the public life of the country, with reckless allegations that are hurled against them and their good names tarnished. They have gone to the extent of accusing people who are dead and who have no way of defending themselves. Professor G.L. Peiris, the politician, has remined silent.

"It is true, as I have mentioned before that from diffidence in my own powers, I for a short time, adopted a laborious and florid diction, which myself deemed, if not absolutely vicious, yet of very inferior worth."- Coleridge

The latest victims of these adhoc tribunals and Commissions, are Upawansa Yapa, the Solicitor General of Sri Lanka, and Sirisena Cooray, the former General Secretary of the UNP. As said earlier Mr. Yapa is one public servant whose honesty integrity and ability is respected by all. It is to the lasting credit of Sarath N. Silva to have appointed him as the Solicitor General, though his passport had been impounded by the Kobbekaduwa Commission under extremely dubious circumstances. It is now known that the other two commissioners were not consulted when Commissioner Bandaranayake took this decision. Mr. Yapa became the victim of relentless abuse at the Denzil Kobbekaduwa Commission as he refused as a state officer to yield to pressures wanting him to subvert justice. Mr. Sirisena Cooray became a victim and was found guilty of contempt of Court when his lawyers were not given an opportunity to make representations on his behalf before the Commission.

It is believed that Mr. Cooray was the closest confidant of President Premadasa, whom the feudal clique of this country believed to be the one single person who kept them in opposition without power and authority for 17 years .

Mr.Yapa, as a public servant and as the person who holds the second most important position in the Attorney General's Department, must be in a quandary as to what he should do to expunge the wild and baseless remarks that have been made to tarnish his good name. On the other hand Mr. Cooray has now gone before the Supreme Court.

Mr. Cooray's application raises two issues of interest to the public and lawyers in regard to the functioning of special Presidential Commissions of Inquiry. The first question goes to a long established principle of justice and the Rule of Law. It is whether a person who is charged before a Court or Tribunal with an offence can subsequently be summoned as a witness and compelled to submit himself for questioning by the Court or Tribunal in regard to the same charge. The Law of Evidence which applies to trials before a regular Court prohibits this.

At the basis of the rule is that of fairness. In addition to the Law of Evidence we now have Article 13(3) of the Constitution which stipulates that any person charged with an offence shall be entitled to a fair trial.

In regard to Commissions of Inquiry the issue takes a new complexion. The SPC law in section 7 empowers a Commission to examine all such persons or witnesses as the Commission may think if necessary or desirable. It also empowers the Commission to admit any evidence which might be inadmissible in any Court in criminal proceedings. The Law also authorises a Commission to act notwithstanding any of the provisions of the Evidence Ordinance.In the Cooray case the Commission after recording some evidence of witnesses exparte notified Mr. Cooray that it was of the opinion that he was implicated in the assassination of Lalith Athulathmudali and that his conduct would be the subject of an inquiry, Thereafter, after further evidence was recorded the Commission summoned Mr. Cooray to appear in person in order to testify before the Commission. Thereupon, Mr. Cooray's lawyers appeared before the Commission and wanted to be heard. The Commission refused to hear them in the absence of Mr. Cooray.

The point raised by Mr. Cooray's lawyers in the petition before Court was whether Mr. Cooray having been notified that he was an accused person could thereafter be compelled by the Commission to appear and be examined by the Commission. The argument will necessarily put in issue the important question whether the basic rules of justice that apply in criminal proceedings before the regular Courts could be done away with by a Commission merely because the Evidence Ordinance does not apply to proceedings before it.

The second point of importance that this case raises is the right of legal representation of an accused person. Section 41 of the Judicature Act permits litigants and accused parties to be represented by lawyers.

Section 16 of the SPC Law also enables a person whose conduct is under investigation to be represented by lawyers. In the present instance the Commission ruled that Mr. Cooray's lawyers had no status in his absence before the Commission,. Mr. Cooray's lawyers have challenged this ruling also. It may be noted that in recent years even when the accused has been tried in Court in absentia his lawyers have been permitted a hearing.

Mr. K.N. Choksy, P.C. who in a previous case instituted by the Government against Mr. Sirisena Cooray obtained his immediate release from detention and Rs 200,000/= as compensation would support this application before the Supreme Court.

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