Hulftsdorp Hill

20th September 1998

It is the beginning of the end

By Mudliyar

The Sunday Observer of September 13 had a most important and revealing news item concerning the arrest of High Court Judge Mahanama Tillekeratne. It stated that "Police sources said that when the CID team went to the Judge's residence to arrest him, they were informed by a lawyer, who was with Mr. Tillekeratne at that time, that the arrest warrant had been vacated by the Magistrate. The Attorney General had then been informed of this development. On the AG's advice, a special CID team has subsequently arrested Mr. Tillekeratne. Police sources also said that the Attorney General had advised that the CID was empowered to arrest the suspect even without a warrant, as it was in connection with the offences of attempted murder and unlawful assembly."

After the publication of this news item, some of the wrath of the legal profession was re-directed from Bandula 'Show' Wickramasinghe, Director CID to Sarath Nanda Silva, the Attorney General of Sri Lanka.

The lecturers from the AG's Department would have taught students of the Law College that the word 'bail' is derived from the old French verb 'baillier' which meant according to Webster's New International Dictionary, to 'give' or 'deliver' and to grant bail, is to set at liberty a person arrested or imprisoned, on security being taken for his appearance.

Thus bail is basically release from restraint, particularly release from the custody of the Police.

The question that would loom large in the mind of every person interested in the independence of the judiciary would be, especially after the President directed the authorities to file a full report on the matter, and then transferred Bandula (Show) Wickremasinghe out of the CID was whether he (Bandula) acted on his volition or acted upon instructions.

Though the manner in which he arrested Mr. Tillekeratne and held him by the hand and pushed him to the car was despicable, and needs censure, yet one should not fall prey to the ploys of the government, which often finds convenient scapegoats, to escape the indignation of the public.

After Bandula (Show) was transferred, he has allegedly confessed to a friend of his, a businessman, that instructions of re-arrest came from non other than Punya de Silva DIG.

Mr. De Silva a close relative of Kusumsiri Balapatabendi, does not have the fame of Bandula Wickremasinghe as a great show man.

Mr. De Silva a more restrained police officer, who had considerable experience in court, would not normally have arrested even a Tiger suspect released on bail for the same offence, unless he had been instructed of the legality of the arrest from the Attorney-General's Department.

The CID has from its inception worked very closely with the Attorney-General's Department. Unlike other police stations the CID handles cases of grave crime which often involve national security.

The CID often takes instructions from the Attorney General's Department before even producing a suspect in court. There is a close liaison between the officers of the CID and the legal officers of the Department. Unlike any other police station, the CID does not file charges in court unless instructed by the Department.

There have been many non-political cases where the Attorney-General had informed the CID that no criminal action can be filed on the available evidence. It is very common for the CID to take instruction from the AG before even arresting an accused.

Thus when the accused is a judicial officer it is difficult to believe that the CID would act independently, without receiving instructions from the AG before even investigating the matter let alone arresting such a high profile suspect. It is more likely that taking such an extraordinary action, the CID would have not moved a finger without the approbation of the Attorney General's Department.

Whatever the crime the judicial officer committed, the Criminal Investigations Department judging by its track record would not even dream of such action as they know from the past, that the police are often made the sucker for what is done by the others.

Therefore, by objective deduction after a long lapse of time the discerning reader may come to a conclusion that the 'Sunday Observer' did publish the truth.

Why did the Sunday Observer go to the extent of saying that "Police sources also said that the Attorney General had advised that the CID was empowered to arrest the suspect even without a warrant as it was in connection with the offences of attempted murder and unlawful assembly".

The correspondent would not have published this story, unless he had checked its veracity both from the CID, and the AG, as the paper was publishing not concocted versions like what was published sometime ago about an unnamed High Court Judge wining and dining with a UNP politico which was a plant and was intended to ridicule the judges. This incident has caused such an uproar that there have been unprecedented protests, and picketing by the legal fraternity, unheard of for nearly a decade. It was taking ominous proportions.

But on the other hand, the CID and the scribes who are subservient to the government could have reckoned that the Attorney-General's exposition of the law on arrest and re-arrest cannot be wrong like a complicated divorce proceedings where the co-respondent is seeking damages from the legal husband. Did the scribe at Lake House boldly publish the truth?

When the news spread to that section of the Black coated political profession who are supporters of the government, even they were aghast.

If the matter was an unfortunate police adventure, it was another matter. Yet to them this was a naked aggression directed at a judge who had resolutely and steadfastly showed his independence.

The word spread, the protest which smouldered in Colombo became an inferno, Courts closed down, lawyers refused to conduct trials, and protests were seen through the length and the breadth of the country.

A few days later Lankadeepa carried a news item which further corroborated the Observer story. Mr. Silva had stated that the manner in which Mr. Tillekeratne was arrested was perfectly legal, and added that if Mr. Wickremasinghe had behaved indiscreetly when the arrest was effected, and if a complaint is made, the police would have inquired into such a complaint.

On the 18th almost every one connected with the legal profession, had read what Sarath Nanda Silva, the Attorney General had reportedly told The Island correspondent that he was unaware of the fact that the warrant served on the Colombo High Court Judge Mahanama Tillekeratne has been withdrawn after the suspect high court judge surrendered to the Kesbewa Magistrate.

The Attorney General said that he was in his office on September 10, till about 7.30 pm. and no lawyer informed him about the withdrawal of the warrant by the Court.

"If I had been aware of the factual situation I would have taken appropriate action" he said.

This statement would have surprised the conscience of the Bar and Romesh de Silva in particular. Mr. De Silva was using his friendship with Mr. Sarath Silva to use his position as the President of the Bar Association, to prevent the arrest of Mr. Tillekeratne.

He virtually pleaded with Mr. Silva not to embark on this drastic action. If it was necessary to record a statement, he would ensure that Mr. Tillekeratne would appear at the CID, provided Mr. Silva ensured that the High Court judge would not be remanded. Mr. Silva could not give any such undertaking.

Then when it was known that a warrant had been obtained for the arrest of Mr. Tillekeratna, Mr De Silva was informed that the High Court judge who had just adjourned for lunch, had been rushed to Kesbewa Magistrates Court and the warrant was recalled.

The drama that ensued later involved the Chief Justice, the President of the Bar Association and the Attorney-General. In the evening Mr. Romesh De Silva was informed by the lawyers who out of abundance of caution had been present at the residence of the High Court judge, that a large contingent of Police officers headed by Bandula (Show) Wickremasinghe, was disregarding the court order and was trying to re-arrest Mr. Tillekeratne.

After having failed to persuade his friend the Attorney General from arresting Mr. Tillekeratna, he telephoned the head of the Judiciary, the Chief Justice of Sri Lanka. The Chief Justice in turn spoke to Mr.Sarath Silva.

It is most unfortunate that some members of the legal fraternity, have misunderstood the compassion and unfailing kindness of this great man, our Chief Justice.

It was at the opening of the new wing of the Attorney-General's Department, that a hot headed security man, of the President's Security, pushed the Chief Justice from getting into the lift with the President. He smiled.

The President was furious and brought the lift down and took the Chief Justice in. If the President had not noticed it, the Chief Justice would have probably climbed the stairs, without complaining or using his authority arrogantly.

It was the turn of the Chief Justice to request Mr Sarath Nanda Silva, to find a reasonable solution to this confrontation.

The Chief Justice detests confrontations and may have felt that this matter could have been easily resolved by requesting Mr. Tillekeratne to make a statement on the next day at the CID, without being re-arrested. There was no imminent danger of Mr. Tillekeratne leaving the country and he is still a High Court judge.

Then, Mr. Silva placed before the Chief Justice a lucid exposition of the Criminal Law relating to the re- arrest of a suspect on a cognizable offence. It was the Attorney-General's view that it was perfectly legal to re-arrest a man though released on bail, if the offence was a cognizable one.

It was not the business of The Chief Justice to overrule the Attorney-General, over the phone.

The Chief Justice failed to convince the Attorney-General over the phone

Bandula Wikcremasinghe had reportedly said "I do not care about the court orders, I have got instructions from the higher place"

This was the beginning of the end of this episode for Bandula (Show) Wickremasinghe. Mr. Sarath Silva told the same paper (Island) in the same interview, that " the moment he heard that the warrant had been recalled he instructed the CID to produce Mr. Tillekeratna in court and release him. (Please note the words not release him on bail but just release him) But his representative, Mr. Sarath Jayamanne Senior State Counsel, appeared before Mr. M.A. Silva the Chief Magistrate Colombo and said something diametrically opposite to what the AG has told the press.

Mr. Jayamanne said that they (the department) had carefully evaluated the evidence and considered whether to remand the suspect or not, and decided against remanding but not to object for bail and moved court that he (Mr. Tillekeratna) be released on bail.

When it was pointed out that there was no question of the Colombo Magistrate releasing the suspect on bail, as he is already on bail by the Kesbewa Magistrate who has jurisdiction to hear and determine the case, both Mr. Wikcremasinghe and Mr. Sarath Jayamanne pleaded no knowledge of that order and said that they did not know even at that moment whether the High Court Judge had been released on bail or not.

When the Senior State Counsel said this, and the lawyers in Colombo did not have the certified copy of the order releasing Mr. Tillekeratna on bail, the Chief Magistrate had no alternative but to adjourn court and inquire over the telephone from the Magistrate at Kesbewa whether the contention of the defence was true.

Thereafter the Magistrate released him without requesting the suspect to enter into another bond.If what the AG said was correct why did Sarath Jayamanne, his State Counsel, insist that he did not know, that the High Court Judge had been released on bail, and then supported an application to release the High Court Judge on fresh bail? This was a move to safeguard Bandula Wickremasinghe.

If the Colombo Chief Magistrate released Mr. Tillekeratne on bail, then the claim that the AG or the CID did not know the release of Mr. Tillekeratne would be justified.

If the AG gave different instructions to Mr. Jayamanne then what of what he said in court? Or was the AG less than accurate when he spoke to the newspaper?

When a similar struggle took place. JRJ was shaken not by the JVP insurrection but by the resolute stand that the lawyers took in fighting injustice, at that time. With that stand the pre -eminent position JRJ's brother HW held in the Bar was relegated to oblivion, and he became a minor force, which resulted him resigning from the Bar Association.

JRJ then decide not to contest the Presidency. Mr. Mahinda Rajapakse, Mr. Nimal Siripala De Silva, Mr. Jeyaraj Fernadopulle who were in the forefront of that non political struggle would bear ample testimony to these facts.

The Bar is offended not only by the action of the Police but sadly with the Attorney-General

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