Hulftsdorp Hill

2nd August 1998

Scandalising the courts

By Mudliyar

Former US President Jimmy Carter commented on February 23, 1977 "In Uganda, reports of Human rights violations there had disgusted the entire world".

Idi Amin Dada the Ugandan dictator in response to comments from Mr. Carter concerning the alleged human rights violations in Uganda stated over Kampala radio that he set up a special Commission of Inquiry to look into the disappearances of people since 1971.

The Commission of inquiry was headed by the Chief Justice. His Excellency Idi Amin Dada stated that the Chief Justice had utterly refuted the allegations concerning the death of the Archbishop and the two cabinet ministers.

His Excellency referred to the alleged murder of Archbishop and two cabinet ministers. He said that the Archbishop and the two cabinet ministers were killed in a car accident.

Idi Amin Dada became President of Uganda in January, 1971 and in the following eight years of his rule he murdered an estimated 300,000 of his own people.

What is relevant today is that when atrocious crimes were committed by Idi Amin in which he unleashed unimaginable terror on the helpless civilian population and killed and ate the flesh of some of his enemies, the whole world was shocked and expressed their concern over his crimes.

But he appointed, in order to soothe the public opinion of other countries, the Chief Justice to head a Special Commission of Inquiry to look into the disappearances.

The Chief Justice exonerated Idi Amin of all crimes.

Later the Chief Justice was murdered and His Excellency Idi Amin Dada kept the severed head of the Chief Justice in his private refrigerator in the Presidential Palace.

Most Commissions of Inquiry are political machinations to implicate and exonerate politicians at the behest of the government in power. It was true in Uganda and most other countries.

It is necessary to remind ourselves that unlike in Uganda the flame of democracy is still kept burning by an Independent Judiciary in Sri Lanka.

Politicians in power hate the independent Judiciary.

According to them the independence it displays in making orders against the Government is an unpardonable sin.

If they fail to coerce and subjugate the Judges who have shown exceptional independence then they strive to obtain the same results by other means.

It is only a few months ago that the Sunday Observer and the Silumina, Government controlled newspapers ran a story concerning the conduct of three Judges.

The story had it that these Judges dined with an accused politician of the UNP. This accused politician was facing a charge before the very same High Court Judge whom he had entertained for dinner at a Hotel in Negombo.

The Judges, the lawyers and those who are concerned about the Rule of Law and the Administration of Justice were shocked at these revelations.

They could not believe that a newspaper like the Observer with a history of over hundred years would ever, even at the instance of the Government, dare publish a story concerning the conduct of Judges unless they were quite certain of the facts.

But the credulous and the gullible people did swallow the story hook, line and sinker.

It was this column that published and informed the public that it was a most disgusting piece of journalism perpetrated to discredit the Judges of the High Court, especially as the Judges of the High Court had given some orders against the Government.

The most important of those decisions were the acquittals of the Editor of Lakbima, Bandula Padmakumara, pronounced by Ms. Shirani Tilakewardene and the acquittal of Dr. Rajitha Senaratne, MP, by Mahanama Tilakeratne.

The Judiciary in the eyes of the Government was becoming too independent and too audacious, therefore it was necessary to discredit them at any cost.

It was mentioned that the politician concerned was Dr. Jayalath Jayawardene, MP of the UNP. After it was published in the newspapers the judges in unison refuted these allegations.

Aloy Ratanayake is the Chairman of the Lake House group of newspapers. Mr. Ratnayake, being a very Senior Attorney-at-law would have known the implication of publishing such a story without absolutely making sure of the facts.

The fact that an Attorney-at-law was the Chairman of the Lake House Group of papers gave credence to the story, as most members in the legal profession felt that an Attorney-at-law would never permit the publication of such a story unless he had verified the truth or otherwise of the publication.

This story had been written by a journalist who had joined the Lake House after working on a tabloid and a vociferous critic of the previous Government.

The members of the profession urged the President of the Bar Association to take suitable action to preserve the independence and the integrity of the Judiciary.

If the Judges did behave in this manner it would have caused grave concern not only among the members of the Judiciary but also among the members of the public.

The day Judges become tools of politicians the Judiciary would lose the place it has in society.

Romesh de Silva, PC wrote to his colleague Mr. Ratnayake, PC stating that if the news item was correct it caused a serious slur on the Judiciary of this country and it should be corrected at the earliest possible time and wanted Mr. Ratnayake to name the Judges involved in the alleged incident.

Mr. Ratnayake responded to Mr. de Silva and stated inter alia "in fact we had done so, and given the names of the Judges, which was not necessary for the purpose we had in mind then we would have been opening ourselves to a charge of malicious defamation and you would have probably sent us a Letter on Demand for defamation on behalf of them in the first instance."

This reply clearly shows the publication was not only malicious but also defamatory in the reckoning of the Chairman himself.

And the Chairman being a very astute President's Counsel would know that his institution would have easily defended such an action without much difficulty if the publication was true and was made in the public interest.

No one would ever doubt that the unbecoming conduct of a Judge should be published in the public interest. But there is a very important rider to this theory - it is that the news-item must be true.

It is not the tradition of an institution like the Lake House to publish such reports as true unless they were convinced of the truth of the story.

It would then not hesitate to defend any action for libel with great alacrity brought against it and would not be frightened of any action for malicious defamation.

The Judicial Service Commission, under whose purview the disciplinary control of the Judges rests wrote more than once to the Lake House Chairman requesting him to divulge the names of the Judges mentioned in the news-item.

In the meantime the President of the Bar Association met the Chief Justice and wanted him to take appropriate action against the errant newspaper which had published the news-item which was in gross contempt of the Judiciary.

The Chief Justice had intimated to the President that the proper jurisdiction to issue a rule against the newspapers, if the news-item was false came within the ambit of the Court of Appeal..

In the meantime the Government or politicians interested in saving Lake House went into action. They had contacted some reliable policemen.

These police officers were requested to make false notes on the basis that they were ordered by a certain important agency to be engaged in surveillance duty by secretly following Dr.Jayalath Jayawardene, MP.

Dr. Jayawardene at about this time had made an application to visit the North and especially to visit the Madhu Shrine which is under the command of the LTTE. Dr. Jayawardene visited the Madhu shrine and his guide was a driver attached to the Red Cross.

After he returned, the driver was arrested and kept under detention and later was remanded. The instructions were that the notes should be made to reveal that when the surveillance officers were following Dr. Jayawardene they had seen the Judges dining at the Blue Oceanic Hotel, Negombo and being entertained by Dr. Jayawardene.

The Police in this country have a horrendous record of falsifying entries in order to prove or disprove a point.

They are experts in pasting notes on pages in the Crime Investigation Books. Unless the book is examined by an expert it would be difficult to show how the original entries had been removed and false entries pasted on it.

Several innocent accused have gone to jail on palpably false evidence given by police officers' concocted notes.

Some Magistrates are guilty of acting as Police Magistrates and accepting the police version as the only true version in a case.

Some Magistrates give the benefit of the doubt to the prosecution and benefit of the sentence to the accused.

Therefore it is not something alarming to find police officers inventing notes.

The Chairman of Lake House after having been requested by the Judicial Service Commission more than once to name the Judges who were involved in dining and wining with the UNP politico has at last been informed of their names.

This was long after the exposure was made by the Lake House newspapers.The Lake House Chairman has mentioned the names of only two Judges though the first report published mentioned that a Magistrate and two High Court Judges were involved in the affair.

Later, they changed their version from two High Court Judges to one High Court Judge and a District Judge and a Magistrate.

Still according to the Chairman the second High Court Judge who was later demoted to be a District Judge has not been named.

These contradictions alone show that the story is concocted in the mind of a deluded politician who had instructed his favovrite journalist to defame all High Court Judges in Colombo.

The Judicial Service Commission has referred the matter to the Attorney General for appropriate action.

It is up to the Attorney General to present papers for contempt, if he finds the news-item false, before the President of the Court of Appeal.

We must not forget that there was an era of lawyers of the calibre of S. Nadesan, QC who appeared supporting a Petition tendered to Court by another Attorney-at-Law S.R.K. Hewamanne, to safeguard the Judiciary from contempt, when the Ceylon Daily News published a news-item prominently displayed under the headlines "Select Committee probe of Mr. K.C.E. de Alwis representations" and "FDB's pleadings prepared in Judges chambers?."

Though this news-item was not an invention of a paid penpusher but a reproduction of a notice of a motion contained in the Order Paper of Parliament, yet the Supreme Court held that the publication constituted contempt of Court.

The Supreme Court stated with regard to the offence of contempt "In England the offence of Contempt by scandalising the Court is not yet obsolete. In the recent past, even in spite of a change of attitude towards the more liberal view, the law of contempt is still operative.

An attack on the honesty and impartiality of the Judiciary has always been held as contempt.

In Sri Lanka too the offence of contempt by scandalising the Court is still very much in force, especially to preserve the "dignity and respect of the Court".

No reasonable prudent person could visualize or comprehend a worst manner of scandalising the court than to impute improper conduct to a Judge of the High Court which is baseless, fictitious and malicious.

Alas! Mr. Nadesan is not alive today to burn the midnight oil to present petitions, argue and obtain convictions against such naked transgressions affecting the honour, integrity and the high esteem and the trust the public has placed on their judges, by political chicanery.

He was nice

His Excellency Idi Amin Dada, the great liberator of the Ugandans, was appointed as the Chairman of the African nations. After the grand dinner at Kampala, some foreign delegates, having noticed the absence of some top officials and cabinet ministers inquired about them from His Excellecncy (H.E)

Delegate: Your Excellency, how is your Minister of Justice?

H.E.:Very nice, very good.

Delegate: How is your Attorney General?

H.E.: Very Good; Very Soft; Nice!Nice!

Delegate: How is your Chief Justice, the man who stood up to Carter and other American Imperialists, the man who headed the Special Presidential Commission of Inquiry, inquiring into disappearances?

H.E.: Pardon me, I cannot comment on him, I have not eaten him yet, his head is still in my freezer. I will inform you, you can join me for a nice soup 'a la Chief Justice!.' It is very healthy, invigorating and makes you very young, even among a dozen women .

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