Hulftsdorp Hill

7th February 1999

The flawed findings of a commission

By Mudliyar

It takes a lot of courage to live through the finding of a Commission, appointed by the President, at the behest of one of her ministers, accusing a former politician of conspiracy to murder and find him guilty of contempt of court and convict him and then proceed to deprive him of his civic rights for seven years.

This is exactly what Sirisena Cooray went through. After the PA came to power, no other man has been accused of every imaginable crime - from the murder of Lalith Athulathmudali to the conspiracy to murder the President herself.

Sirisena Cooray is out of power. He is not even a member of the UNP. During the PA regime he has been more out of the country than in. He was not the person responsible for removing the civic rights of the President's mother. Then why should a government elected by a popular vote, and a President who had obtained 62 % of the popular vote hound a man who is virtually in retirement. But it has been done with all the resources at the command of the government with such a ferocity. The answer to the important question is found in the Lalith Athulathmudali Commission report itself.

The commission had accepted that Mr. Cooray is an organizer with exceptional ability "On the contrary, that direction has to come from elsewhere, from people with exceptional organisational skills, capable of having the support of a large number of public officials such as policemen to make such an event (ie); an assassination of a political leader in with a chance, a credible winning candidate, possible and to supply cover-up. Here we see just those things. The police withdraw security. After that even police tamper with evidence and continue to present a false picture to the public. Another person is killed and falsely presented as the assassin. Without this help the event is not possible. And to what length they had gone to falsely implicate the LTTE. To get the cooperation of all these public officials needs someone at a high political level who would protect them by using political powers, with money, with newspaper publicity, with weapons etc .But President Premadasa and Mr. Sirisena Cooray could have."

Even in retirement, and out of politics Sirisena Cooray is considerd a threat to the government. Therefore, it was incumbent to keep him in custody even with the most unimaginable fantasy concocted by the officials of the Commission. The Lalith Athulath-mudali Commission was a mere extension of the virulent campaign of abuse and lies that were directed, first against Sirisena Cooray's leader R. Premadasa. Most politicians reckon that as long as Mr. Premadasa was at the helm of affairs there would be no opportunity for them to win an election. In contrast to what happened in Wayamba, the1991 Pradeshiya Sabha elections are now considered the fairest elections ever to be held after 1977. This has been opined by no less a person than the present Commissioner of Elections Dayananda Dissanayake himself. At these elections the UNP won more than three fourths of the seats it contested. It is no secret that though Mr Premadasa was the front, behind him was Sirisena Cooray – strategist par excellence, and as the Commission contended: "the organizer with exceptional skills".

It has been said by inde pendent observers that the darkest perod that ever enveloped Hultsdorp Hill was when the Commissions appointed by this Government were sitting at Hulsdorp. This situation was accepted by many and re-echoed by persons of the calibre of Upawansa Yapa, former Solicitor-General. Therefore, it was necessary for someone to challenge the findings of these witch-hunts before the Supreme Court and it was done by Sirisena Cooray. The judgment of the Supreme Court, to a great extent enabled the dark clouds to be cleared and the people who had been robbed of their rights became increasingly dependent on that instituion -the Supreme Court.

When the Commission refused to permit Mr. Cooray's lawyers to make representations and tried to label his lawyers as 'cheap introductions' this is what the Supreme Court had to say: "The Commissioners quite erroneously overlooked the fact that under the law the Petitioner had the right of representation by lawyers; it is not a 'cheap introduction' but a cherished right recognized throughout the civilized world. Most of those matters mentioned by the Commissioners clearly fell outside the ambit of the warrant".

The commission in its report, thereafter, proceeded to make a series of propositions of law regarding its determination of contempt. It is correct to say that the commission is not required by law to transmit a determination made on contempt to the Supreme Court. The commission says: "There is a good reason for this discretion remaining with the commission. There is a legal principle that an offender should not be punished twice for the same offence (page 210). The commission has no punitive power whatsoever. Its determination will remain a 'damp squib' if the Supreme Court does not take cognizance of the offence. The commission then went on to say: "Certain Constitutional provisions now take over. The commission now considers certain provisions in chapter 14 of the Constitution. The chapter deals with The Franchise and Elections" (page 211). Then the commission having cited portions of Articles 89 – 91 relating to disqualifications from being an elector and being elected as a MP, on being convicted of an offence of contempt, stated: "This disqualification applies to Mr. Cooray as he was convicted by this commission for avoiding the summons without reasonable cause. In the result Mr. Sirisena Cooray is disqualified from being elected to Parliament for a period of 7 years from the date of his conviction……….This result the commission considers to be in the nature of a punishment. The commission has no power to 'convict' any person of any offence and that is a power vested exclusively with the regular Court"

The Supreme Court says: "The commission has no power to 'convict' any person of any offence and that is a power vested exclusively with the regular Courts [see Article 13(3) of the Constitution]. If legal representation was permitted on behalf of the petitioner, probably even the most junior lawyer would not have taken much time to convince the commission that it had no power to convict a person of an offence. The commissioners could have entertained doubts in their own minds as to their competence to convict a person and that is why probably they made a disqualified recommendation in saying "We recommend that he be made subject to civil disability if our view of the consequences on the finding of contempt of the commission is unacceptable". That view is unlawful and unacceptable in law." Then could it be construed Tissa Bandaranayake, a former Supreme Court Judge overlooked what would have been obvious to any junior lawyer that the commission had no power to 'convict' a person of an offence.

A.C.S. Alles, a respected Judge of the Supreme Court and the present President of the Retired Judges Association had many time publicly stated that no Supreme Court Judge should sit on Commissions appointed by Governments to persecute its political opponents. As much as J.R. Jayawardene thought that as long as Mrs. Sirimavo Bandaranaike remained the alternative Prime Minister and the Leader of the Opposition it would be difficult to defeat her at a subsequent election and enacted a Special Presidential Commission of Inquiry Act and proceeded to deprive her of her civic rights, similarly the present Government had thought that even in death R. Premadasa's legacy was the only force that would regroup the ordinary people against the Bandaranaike's and proceeded to make fantastic pronouncements that Premadasa was responsible for the killing of Vijaya Kumaratunga, General Denzil Kobbekaduwa and Lalith Athulathmudal.

It is obvous that the witch- hunt was then directed at Sirisena Cooray as the government felt the only person who would be a political threat to the Government was Premadasa's closest ally and confidante B. Sirisena Cooray, who had the network to regroup people who had received benefits under the Premadasa regime and make it a political force.

Therefore, it became nec essary to disenfranchise him. It was obvious, as the Supreme Court pronounced not only to a junior lawyer, or even a first year law student who would have a cursory glance at the Special Presidential Commissions of Inquiry Act that it was the Supreme Court and only the Supreme Court had the power to convict Mr. Cooray of contempt of court. Then why did an ex-Supreme Court Judge refrain from submitting its findings to the Supreme Court. It was obvious to anyone with a rudiment of legal background and knowledge that the Supreme Court would without doubt refuse to convict Mr. Cooray on the material and reverse the findings. After having refused a lawyer to make representations on behalf of Mr.Cooray then the Commission proceeds to convict him on the basis that he did not appear before the Commission. Tissa Bandaranaike, the former Supreme Court Judge and the 1st Respondent in Mr. Cooray's application says in his written submissions tendered to Court by his Counsel that the right to vote is an inferior kind of right of no consequence and therefore a person could be deprived of that right less seriously. His contention was to find a person concerned in and a member of a conspiracy the ingredients that are necessary to prove such an involvement are less in gravity than under the Penal Code and the counsel for Tissa Bandaranaike has urged that a violation of the penal laws entailed in penal consequences; whereas if the recommendations of the Commission is accepted by the legislature, it will impose only civic disability on the Petitioner. Civic disability is not a punishment".

To these startling and mind boggling submissions the Supreme Court has this to say: "We reject this dangerous heresy for two reasons. Firstly, norms of criminal culpability should be certain and they cannot take different shades depending on who applies them, secondly, learned Counsel's submission is based on the belief, (like the scant respect the Commissioners had to the right of representation by lawyers) that the right to vote is an inferior kind of right of no consequence, therefore a person could be deprived of that right less seriously. Article 21(1) of the Universal Declaration of Human Rights states 'every one has the right to take part in the Government of his country, directly or through freely chosen representatives. In Bandaranaike Vs. De Alvis, Samarakoon C.J. called that right the most precious of them all that right should not be likely interfered with'

And on the more important findings of the Commission- that Sirisena Cooray conspired to assassinate Lalith Athulathmudal, the Supreme Court states: "Besides the double hearsay, evidence of the prisoner show there was only suspicion lurking in the commissioners' minds as evidenced from the report that the petitioner "could have" done various acts. The technical rules of evidence certainly are not applicable to the proceeding of the commission. But what probative value did the evidence of the prisoner who spoke about a confession of Seneviratne and involvement of the petitioner carry? Principles of natural justice require that a tribunal's decisions are based on some evidence of probative value.

The Jungle Telegraph

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