Hulftsdorp Hill

27th June 1999

Soon there will be a day of judgment

By Mudliyar

The illegal arrest, detention and prosecution of Mahanama Tilekaratne was considered a vicious attack by the Executive on the independence of the Judiciary. We have written column after column, page after page, on this pernicious act directed at a Judge who had the reputation of being independent

But the end has come, sooner than expected. The Judgment of Munidasa Nanayakkara, Magistrate and Additional District Judge of Kesbewa was another instance where the minor Judiciary had fittingly used the discretion bestowed upon it by the Criminal Procedure Code to analyse the evidence led before Court and judicially weigh the pros and cons, and deliver the judgment according to one's own conscience.

Mr. Nanayakkara displayed his fearlessness which is an important part of judicial equilibrium. It is unfortunate that some of the young Magistgrates who have joined the Judiciary with a few years of experience in the Bar, delegate the judicial power vested in them to the Attorney-General by merely committing the accused to stand trial in the High Court.

The Attorney-General's Department which had on many an occasion used this discretion valiantly by refusing to indict the accused who had been committed to stand their trial at the High Court tended to relegate this hallmark of excellence to oblivion. The Attorney- General's Department sometimes blindly indicts cases committed to the High Court without taking on itself the responsibility of weighing the evidence.

Thus the High Court is cluttered with indictments that should never have got there in the first place. This is the most unfortunate recent history of the Administration of Justice in relation to non-summary inquiries. The Magistrates act like a conduit between itself and the High Court. The Magistrates, more often than not, refuse to address the obvious infirmities, contradictions and lack of corroboration of the evidence that has been placed before it.

This unsavory condition is further augmented by the fact that the Judicial Service Commission appoints junior supernumerary Magistrates as subordinates to the principal Magistrates and directs them to inquire into the more serious cases that come before a criminal Court e.g. Murder, Rape and Attempted Murder. This procedure gives the impression that the function of the Magistrate is to record whatever muck that is being led before him, and the slightest inference of any offence had been committed by the accused becomes sufficient to commit the accused to stand trial before the High Court.

It seems that these Magistrates are given such instructions and they follow those dictates often without discussing the evidence. This has led to the belief that non-summary inquiries have become a white elephant and have to be removed from the Statute Book. In a way there is a lot of merit that could be attributed to this argument if the Magistrates are told that their functions are to record evidence as fast as possible and commit them to stand trial before the High Court.

If this is the sole function of a Magistrate there is no argument to keep the non-summary procedure in the Statute Book. But will this reduce the backlog of non-summary cases in the circuit? Professor G.L. Pieris has found to his bewilderment that there are non-summary cases that had dragged on for more than ten years. Sad! But High Court Judges are aware there are some murder trials which are more than ten years old still pending in the High Court for reasons beyond their control. Witnesses cannot be traced. Productions have not been sent to the High Court. Documents are still in the Magistrates Courts. Reports of the Government Analyst or the Doctor are not available.

In the light of this background it will be most interesting for the proponents of abolishing or retaining non-summary procedure with limited powers to the Magistrate to study the order of Mr. Nanayakkara. The order which runs into 23 pages deals fully with the evidence of the two main eye-witnesses, the contradictions of the evidence found in their statements to the Police and to the CID, Police and to Court, and the evidence of one witness as compared with the evidence of the other.

The judicial analysis of the evidence made with a fine toothed comb exemplifies the falsity of the evidence given by these two witnesses in Court, but Mr. Nanayakkara the Magistrate who was the former Chief Magistrate Colombo, and has a wealth of experience behind him, could not be subjugated into submissions by the defense or the prosecution.

He could at once objectively see deliberate mischief on the part of the Criminal Investigations Department to wreak vengeance on the High Court Judge who had the backbone to say what he consciously felt in the case involving Dr. Rajitha Senaratne.

It is instructive to note the strictures made by the District Judge Kesbewa on the most unusual unwarranted procedure adopted by the CID to harass Mahanama Tilakaratne. The sad but naked truth is that every action taken by the CID with wanton bias was supported by the Attorney-General's Department in Court. The order of Mr.Nanayakkara has taken into account these facets and highlighted them so that even at the instance of the Almighty the CID would not retread such a hollow path. I quote from the order. "Under normal circumstances a plaint is filed and charges are framed against an accused when the inquiries into the alleged offence are definitely concluded. But when the inquiry begins and when the witnesses are cross-examined, if another investigation is carried out on the basis of the evidence that has been elicited on such cross-examination, the only conclusion the Court could arrive at is that it is most unusual and unnatural. It is the duty of the defense to prove the positions taken by them, and if they fail to prove to them it endures not to the benefit of the defense but to the benefit of the prosecution.

There were many instances in this case where investigations were conducted by the prosecution in the midst of the inquiry. When the defense tried to show that the complainant Somachandra when he was residing at Maharagama had been involved in altercations with his neighbours the prosecution immediately went in search of those persons and conducted a separate investigation. When it was suggested by the defense that the Kahathuduwa Police had been informed by a person attached to the Engineering Unit of the Army where Somachandra was working that an unknown gang had entered Somachandra's house and had assaulted him, the prosecution immediately got activated and went in search of the person who gave this information as if to correct the version he had already given to the Kahathuduwa Police.

Other than these two instances when the 2nd accused was absent from Court and tendered a Medical Certificate but instructed his Attorney to continue with the trial in his absence, the prosecution went in search of the doctors who had issued the Medical Certificate and tried to file a plaint against them. None of these investigations, which commenced after the inquiry began, were done on the direction of this Court.

Taking these three instances into consideration it is my opinion that the prosecution had become a party to the case and had given the impression that they were pursuing the accused remorselessly. When you consider these instances this Court cannot altogether reject the suggestion made by the defense that the evidence of the main eye-witness to the incident, Eugine Padmini, has been fabricated either by the complainant or by the CID"

These are strong words which emanates from the pen of a fiercely independent Magistrate. This is the fervent hope of all right thinking independent people who cherish the Rule of Law, that the CID will put an end to this notorious task of becoming the political arm of the Government like some dreaded Gestapo .

In this entire episode of gloom there is a ray of hope for the future in this country. It emanates from the soul of Sajeeva Samaranayake, State Counsel who conducted the prosecution. It is indeed sad that there are a few State Counsels in the Department who had taken over the manifestation of an ugly political puppet. They conduct themselves in Court like bulls in a china shop. They murmur dirty words and make ugly faces at witnesses if they fail to give an answer favourable to them.

This gives vent to the feeling that the era of State Counsels being Officers of Court willing to place their case to the best of their ability and not pursue the prosecution as if they were a party to it, is history now.

Mr. Samaranayake has shown that he would always uphold Justice and the Rule of Law. When it was brought to the notice of Court that Eugine Padmini the main eye-witness was nothing but an inveterate liar and the only consistency of her evidence was its sheer inconsistency Mr. Samaranayake did not jump up like a jack-in-the box and shout himself hoarse to cover the legacy of lies. He like the Crown Counsels of yesteryear acknowledged without even having to consult his superior officers that the inquiry into the allegations of attempted murder by shooting cannot proceed in the true spirit and the tradition of the Attorney-General's Department.

The Special Assignment

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