Hulftsdorp Hill

10th January 1999

Yapa displayed integrity and independence

By Mudliyar

Justice Ranjith Dheeraratne asked K.N. Choksy, P.C. when he was addressing Court in relation to the findings of the Lalith Athulathmudali Commission whether Sirisena Cooray conspired to kill Lalith Athulathmudali, and whether the evidence was sufficient even to hang a dead rat.

This observation was made by the learned Judge when Mr. Choksy was making submissions on behalf of Mr. Cooray to quash the findings in the Lalith Athulathmudali Commission report against him. I believe an equally important observation was made by the Judges of the Supreme Court, in response to a statement made by Wijedasa Rajapakse, Counsel for the Commissioners when he said "nothing flows from the findings of a Commission".

"If the Commission makes highly defamatory statsements against a person without any material, does such a person have no recourse in law to clear his name, and challenge such findings" observed the judge.

The political vendetta that crept into the Commissions was so venomous that it swallowed every single person or his opinion which was opposed to the theory on which the Commission worked on.

Unlike the politician who has the Parliament and its privileges to protect his name, what is the position of a Government servant who has been defamed by a Commission. He has no recourse to sue the Commission by way of a criminal or a civil action and does not have the Parliament platform to hurl abuse at the Commission who had abused him by taking cover under Parliamentary privileges.

The only recourse such an individual has is to come before the Supreme Court and explain the arbitrary and capricious observations or remarks found in the report on which no reasonable person would even hang a dead rat, and plead his case, to quash the findings of such a Commission.

Upawansa Yapa, P.C. retired from the post of Solicitor General on December, 1998. He has been appointed as a Special Appeals Prosecutor attached to the World Court in The Hague. I believe this appointment is another indication of what eminent jurists in the UN think of him. Out of many international applicants he had been selected. Without doubt he is one of the ablest prosecutors we have had. From the time he joined the Attorney-General's Department till his retirement there wasn't a breath of allegation of any wrong doings against him.

Even some of those members in the Attorney-General's Department who did not see eye to eye with him would concede that the honour, impartiality, integrity and independence displayed by him was something that the entire Department could be proud of.

During the last regime a prominent Minister who had known Mr. Yapa from his Law College days had spoken to him about charges being framed against a Member of Parliament. Mr Yapa told the Minister he had listened to the submissions made on behalf of the MP by a prominent President's Counsel and that he saw no merit in the argument and that he would personally prosecute the MP. as others in the Attorney-General's Department have shown reluctance to do so.

Then the Minister tried to suborn him with a little bit of pressure and told him "Upawansa, these are highly politically sensitive cases and you should be more cautious in filing action and framing charges against the MP". Mr. Yapa told him, "Mr. Minister, you must know that I am not interested in politics, I am only interested in justice. I believe there is more than sufficient evidence for murder against the MP and I see no justice in not filing charges against him." Mr. Yapa heard the loud click of the telephone being replaced at the Minister's end.

The MP crossed over, the Government changed, and the Attorney-General decided not to frame charges. The MP in question got re-elected. If Mr. Upawansa Yapa had prosecuted instead of sitting in Parliament he would be languishing in prison.

Another UNP Minister's henchman had entered in to a contract with a Japanese trawler company permitting it to fish in our territorial waters beyond a certain limit. The Japanese as usual breached the agreement and was fishing in close proximity to our shores and with their improved technology were able to denude our sea of valuable fish. The fishermen in the eastern coast complained their traditional fishing grounds had become bare of fish due to high-tech massive fishing that was being carried out illegally by the Japanese fishing company. Petitions sent to the Minister were ignored. The Japanese went on merrily fishing depriving Sri Lankans of one of their cheap sources of protein.

It was suspected that a fat commission had passed. Quite by accident the Sri Lanka Navy arrested a Japanese trawler which had not only breached the agreement but was becoming a security threat. The Minister was furious that the Navy had done something which they had no right to do. He shouted at the Navy Commander that these were trawlers and not gunboats and under no circumstances could these trawlers become a security threat.

The matter was handed over to the Police and the Police filed a report in Courts and the extracts were sent to the Attorney General. Unfortunately for the Minister the file was assigned to Mr. Yapa. The Minister sent his emissaries to Mr. Yapa to find out whether this matter could be dropped.

The very sound of Upawansa Yapa's name causes a miserable noise in the ears of politicians who use the Attorney-General's Department to file or withdraw charges according to their whims and fancies. Mr. Yapa refused to relent and he personally proceeded to a Court house in the Eastern Province to prosecute the Japanese for having fished within our territorial waters.

The Minister knew that it was futile to get Mr.Yapa to change his position and get him to withdraw the charges against the errant Japanese fishermen. At the end of the case the Counsel who appeared for the Japanese fishermen at the instance of the Minister, congratulated Mr. Yapa for having successfully prosecuted the errant Japanese.

But at the end of the day it was the Minister who had the last laugh. Like the glorious uncertainties of cricket, the glorious uncertainties of justice are there to be seen when powerful politicians get interested in protecting those who patronize them. There was a buzz around Hulsdorp Hill how the Magistrate delivered the order acquitting the Japanese fishermen when there was overwhelming evidence against the accused.

Mr. Yapa had a knack of settling defamation cases when the most powerful of the land had been defamed by political opponents. When a direct indictment was framed against R.P. Wijesiri for defaming President J.R. Jayewardene and when the Court of Appeal upheld the objections taken by Dr. Colvin R. De Silva assisted by D.S. Wijesinghe, Mr. Siva Pasupathy former Attorney-General summoned Mr. Yapa to his Chambers and regretted that he did not heed the advice of Mr. Yapa. He said if he had done so the Department and the President would have been saved of a grave embarrassment. Similarly when Mervyn Silva, the present M.P for Hambantota District and the late Vijaya Kumaratunga were charged in the High Court for defaming Mr. J.R. Jayewardene, Mr. Yapa took the view that it was far better for the complainant to settle the criminal defamation case with an apology without going through the ignominy of facing a trial in the High Court. Similarly when Editor, Sunday Times was indicted Mr. Yapa went to Court and suggested a settlement. Later the brief was withdrawn from him.

In hindsight Mr. J.R. Jayewardene and the UNP Government felt that it was far better to take the advice of Yapa, Head of the Criminal Division of the Attorney-General's Department and settle matters in Court than to go through a protracted trial which might be more defamatory of the complainant than the alleged defamatory statement. (continued next week)

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