Hulftsdorp Hill

4th October 1998

The decision he has to take

By Mudliyar

The Executive Committee of the Bar Association unanimously adopted a resolution requesting the President to appoint a Commission of Inquiry to investigate and report on the manner and circumstances in which Mr. Mahanama Tilakeratne, High Court Judge, was arrested and the persons responsible for the arrest. This resolution was adopted unanimously by the Bar Council on the 26th of September, 1998.

The editorial of the Daily News of 2nd October, 1998 has passed strictures on the resolution that was adopted by the Bar Council unanimously. It says "Has not Mr. Romesh de Silva denigrated the BASL by calling for a Commission of Inquiry? Incidentally there is a High Court Judge who is under compulsory leave on a rape charge. Did the BASL call for a Commission of Inquiry in this instance?" Those unfortunates specimens living on Lake House, striving to satisfy their political masters, who often miss the target and the point by a huge margin, should know the basic reason for the call for a Commission of Inquiry. In the case of the High Court Judge charged for rape, neither the BASL or other ad hoc body of lawyers passed resolutions, nor did they stage a protest, as the Police on the instructions of the Attorney-General did not arrest the High Court Judge, even though he was alleged to have committed a crime which entails severe punishment. The Police on the instructions of the Attorney-General requested the High Court Judge to appear at the Mirihana Police Station. His statement was recorded and he was released without being produced in Court.

The Attorney-General did not say on whether that offence was cognizable or not. When the High Court Judge appeared in Court the next day, the Attorney-General did not say that they spent a sleepless night considering whether the suspect be remanded or not. The suspect High Court Judge was released on bail and the trial is proceeding. As the Attorney-General told Mr. Romesh de Silva, the law should take its own course. The law took its own course in the rape case. The Commission of Inquiry would be necessary only if the law did not take its course and the CID and the Attorney General's Department were taking utterly contradictory positions before the public.

Because of the glaring differences in the notes made by all the senior Police Officers of the CID and the statement made by the Attorney-General exculpating himself from any blame for the illegal arrest of the High Court Judge, the Bar Association thought it fit to call for a Commission of Inquiry to find the truth, the whole truth and nothing but the truth. It was Mr. De Silva's contention that the Bar Association is interested to find out who was responsible for the illegal arrest and take appropriate steps after the truth comes out at the Commission of Inquiry.

Others argue that this was a conspiracy between some senior members of the Executive Committee of the Bar Association and those who were responsible for the arrest. The request for a Commission of Inquiry was to delay as long as it was necessary in order to placate the growing protests of the legal fraternity of the involvement of the Attorney-General himself in the arrest. Commissions of Inquiry have a notorious past and have been roundly condemned by those who wish to preserve the Rule of the Law. Governments have reduced the Commissions of Inquiry to a mockery by political gymnastics and brought to light the falsehood and not the truth.

Be that as it may, there are three important persons involved in this arrest. They are, Mr. Sarath Nanda Silva, the Attorney-General, Mr. Punya de Silva, DIG CID and Mr. Bandula Wickramasinghe, ex-Director, CID. This is the first time the Attorney-General accused the CID of concocting notes.

A leading criminal lawyer who is a President's Counsel said after the admission by the Attorney-General it would become necessary like in England for those aggrieved by convictions based solely upon CID notes to reopen the cases though the appeals have been finally disposed of.

The position became more contrary, following the various interviews given to the media on the arrest.

Let us examine the position taken by the AG in interviews. The 'Mid Week Mirror' asked him the following questions;

Q: Did Romesh de Silva give you an undertaking that he would bring Mr. Tilakeratne to the CID headquarters the next day to record his statement?

A: No. He did not. If that happened there would not have been any trouble. He only asked me if the arrest of Mr. Tilakeratne could be averted and if the statement could be recorded in the chambers or at his house,

Romesh De Silva to the 'Sunday Leader (20.09.98)'

At this point, according to the President BASL, he contacted the AG once again, and stated that now there was a warrant out. 'I will personally undertake to bring the person to the CID'. However, the AG at this juncture was not willing to give an undertaking that Tilakeratne will be released.

AG to the 'Mid Week Mirror'

Q: When did you hear that Mr. Tilakeratne had been issued bail?

A: The next morning the Chief Justice had sent for C.R. De Silva and had asked him if he was aware that at the time of arrest Mr. Tilakeratne had been granted bail, The ASG had denied that he knew anything about this and reported the matter to me. Then I checked up with the CID where Mahanama Tilakeratne was, and they said he was still with them and that they did no know which Court to produce him as there were protests in the Courts. I told them that it was bad to keep this person in custody. I told them that they should release him. I advised the CID to come immediately to the Colombo Magistrate's Court, the AG's Department could send an officer to produce him in Court to enable his early release. I assigned Mr. Jayamanne to assist the CID to produce Mahanama Tilakeratne before the Chief Magistrate and ensure his release."

The CID notes on the same matter "at 1330 hrs at Chief Magistrate's Court.

On the instructions given by Hon. A.G. H/C Judge Mahanama Tilakeratne was produced before Chief Magistrate Silva. Attorney-at-Law Hemantha Warnakulasuriya informed Court despite the fact H/C Judge M. Tilakeratne being bailed out by the Magistrate, the CID has arrested the H/C Judge. At this stage S/C Sarath Jayamanne who appeared from AG's Department informed the Chief Magistrate that Director CID has not been intimated re bailing out of H/C Judge by Magistrate Kesbewa.

I also personally informed Chief Magistrate up to producing of H/C Judge in Court no official intimation was received by me as D/CID. S/C Sarath Jayamanne informed Chief Magistrate to place above facts in case record. The decision to produce H/C Judge in Chief Magistrate Court was on the advice of Hon. A.G. The Magistrate released H/C Judge to appear in MC/Kesbewa on 17.9.98"

Q: Why did you refuse to prevent the CID from arresting the Judge when the President of the Bar Association Romesh de Silva asked you to intervene?

A: "Then he suggested that the statement be recorded in the chambers at the house of the Magistrate. Then I explained that it was not possible, primarily because all accused will say 'come and record my statement and don't arrest me' So I said I could not possibly suggest an exception to the CID in this instance".

(My Comment) But the Attorney General acted contrary to this attitude in recording of statement of suspects or giving instructions to police, when it related to another High Court Judge, U.L. Abdul Majeed, who was later charged for having raped a domestic servant named Nadeeka.

The girls Nadeeka and Sivalaxmi were arrested by the Aluthgama Police and produced before the Kalutara Magistrate C.V. Rajapaksa. Later the girls informed the Probation Officer about the alleged incident.

The girl Nadeeka was examined by Professor Niriella, who confirmed that she had been sexually assaulted. Later the Magistrate ordered the Mirihana Police to inquire into the incident of rape. There was no CID to investigate, or State Counsel to move for the arrest of the HC Judge.

The Judge was asked to report to the Mirihana Police. He was neither arrested nor did the AG give advice to the Mirihana Police to arrest him as he had committed a cognizbale and non-bailable offence.

The Police treated the Judge courteously and after recording his statement, he was permitted to go home. On the next day the police filed a report, and the Judge was released on bail.

To those who have become so concerned with the possibility of lawyers refusing to appear for the complainant, an Army officer in the Mahanama Tilakeratne case, it is a matter of pride to the legal profession that a large number of lawyers appeared for the minors irrespective of the fact that the accused is a High Court Judge and even today lawyers are watching the interests of the minor girls for no fee.

To the Mid Week Mirror of 23rd September 1998

Q: Will you defend Mr. Wickramasinghe in the Court of Appeal ?

A: No. We won't defend any Officers charged with contempt of Court. We will assist Court to press charges if our assistance is sought. We never identify ourselves with any person who is accused of an offence.

(My comment) As the notes kept by all the senior officers clearly corroborates the notes of Bandula 'Show' Wickramasinghe, and as a Police Officer he alleges that he has acted on the instructions of the Attorney-General, there would indeed be a conflict of interest between the A.G. and the CID which they will have to resolve for themselves.

Q: The police say the matter had been put to the Mediation Board on June 17 and that is why they did not take any action and that there was no need to put it to the CID

A: Both legs of this man have been broken. It is a serious case. The Mediation Board has no jurisdiction is such a serious case. The Police had not submitted the medical report to the Court, and they were falsely trying to make it out as a simple case.

(My comment) After the complaint was investigated by the CID and on the instructions of the Attorney-General who would have access to the Medico-Legal report the plaint was filed under the same section of the Penal Code section 316. The AG has in addition filed a charge for attempted murder on the sole testimony of witness on a belated statement.

There was no reference to any gun shot injuries on the medico-legal report and therefore as confirmed by the AG by his own plaint, the Kahathuduwa Police filed a report alleging the same charge to wit 316.

The law decrees that such an offence should go before the Mediation Board, whether the both legs of the man were broken or not. It was the additional charge framed by the AG on a belated statement which made it possible for AG to file charges for attempted murder, not supported by Medical Evidence, that took away the jurisdiction of the Mediation Board.

Q: How do you react to the Bar Association of Sri Lanka planning to support Mr. Tilakeratne in the Fundamental Rights case against you, making you a party in your private capacity?

A: As far as I am aware there is no truth in that at all. The report's inaccuracy has been confirmed in a letter by the President of the Bar Association of Sri Lanka to me. In any event there is no basis whatsoever to make me a party in my personal capacity.

(My Comment) Romesh De Silva, the President of the Bar Association requested Ranjit Abeysuriya P.C. to discuss this matter at the Executive Committee. The Bar formulated the resolution, which was mainly drafted by Mr. Abeysuriya. Romesh De Silva indicated that he would appear for the Judge.

But others disagreed and later it was decided to request Mr. Abeysuriya to file papers on behalf of the Judge. The question of obtaining an affidavit from the Chief Justice was discussed and as an alternative it was indicated that Romesh De Silva P.C. would give an affidavit to support it.

Ranjit Abeysuriya P.C. was the Director of Public Prosecutions under the SLFP regime and remains a close friend of H.E The President. He was awarded the High Honour 'Deshamanaya' by this government.

He has a reputation of never compromising his stand he has taken on behalf of a client or a cause. The decision whether to name Sarath Silva a respondent personally liable for the violation of the fundamental rights of Mahanama Tilakeratne is a decision Mr. Abeysuirya would take.

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