By M. A. Sumanthiran –

M.A Sumanthiran PC

Thank you Honourable presiding member. I am glad to speak on the 3^rd Reading, particularly on the votes of the Ministry of Justice today when my good friend at the Bar Hon. Ali Sabry is the minister of Justice. We’ve had a long association. He occupies a very prestigious post that of a Minister of Justice, In the olden days it was occupied by somebody who was from the Senate – from the upper house – because it was a prestigious office to hold. However I think he may feel like the Minister of ports and shipping of Afghanistan today. I say this, because having listened to the exchange that took place when the former Minister of Justice was speaking: between the government benches and the main opposition party, one couldn’t escape wondering if they were both letting down the Judiciary, because when you accuse the other side of meddling with the Judiciary and cite Judgments that have been delivered by the Judiciary and imply that those judgments were wrong – were influenced by the executive of the day, then you are both actually letting down the Judiciary. Perhaps that is the true state of affairs of the country because Judges continue their tenure. Governments come, Governments go but they continue and if you in the House today argue as to which point of time a particular judgment was given and what the political implication of that is, then you are both pointing a finger at the Judiciary and I am only worried that what you were doing was perhaps even justified.

I am also happy to follow the Hon. Prof. G.L. Peiris. He made a point in his speech and said that the fundamental rights jurisdictions must be now given to lower courts where people in their own localities can have access too. I suppose when in the 1978 constitution it was given to the supreme court, it was a new jurisdiction and perhaps to establish benchmarks it was given to the apex court. But he is right. So many years have passed – 42 years have passed – long ago it should have been given to the provincial high court at least. There is another reason why that should be done. He said it in his own words. He said it is a court of first instance – court of first resort and the last resort too. Now there lies a problem. When that is a court of first instance and also the court of last resort, we find a new phenomenon where judges feel that they don’t have to be accountable, in the sense that they don’t have to give reasons. I know that in certain instances reasons are not necessary but in today’s world when Judges themselves find fault with administrators when they exercise writ jurisdictions etc. that the duty to give reasons is of paramount importance, they themselves don’t do that. Courts that are below the Supreme Court are generally careful to give reasons or very careful when they deliver Judgments because they know there is somebody above them who might review their decision. But when it is the Supreme Court, that fear is absent and when it is the first and the last court surely there is something that is wrong and I welcome the Hon. Minster’s suggestion that the fundamental rights Jurisdiction must now be given to perhaps the provincial high court or court of appeal if it can sit in the provinces.

The issue of justice in this country is a subject that paints a bleak picture of the country. So many emblematic cases where people have struggled for justice for decades on and are still struggling for justice – and that is not a good thing to say – but that is the fact. If I start listing out names of such persons its a long, long list, and most of the time it is due to the fact that there is political interference into the affairs of the judiciary. There is a book written by three authors, Jayantha de Almeida Gunaratne, Kishali Pinto-Jayawardena, and Gehan Gunatilleke, called “The Judicial Mind in Sri Lanka; responding to the protection of minority rights” published by Law and Society Trust in January  2014, which is very revealing as to the judicial attitude particularly towards the minority. In this they start from the very beginning when the Citizenship Act was passed and the case of Kodakkanpillai Vs Mudannayake  and then Kodeeswaran case etc. and come down until recent times when issues of minority peoples’ right have been dealt with very differently to that of other cases. We saw a recent phenomenon when the Hon. Minister of Justice himself, in desperation, tweeted. I mean, all he could do was to tweet about the burial rights of the Muslims in Sri Lanka, to no avail. Hon. Minister, because even that matter was summarily dismissed albeit by a majority decision. At least one Judge agreed that there was something to look into. But no reasons given. Yet again very serious issues have been summarily dealt with like that. There are other cases where not even investigations have been done. Now I can cite the Welikada massacre of 1983: was anyone punished for that? No! When people who are in state custody, get killed in custody, surely people can be held responsible. Now this has happened now, from Welikada 1983 to Mahara a few days ago this is happening. That’s not a good thing.

Bindunuwewa in 2000, 27 People were killed, Vavuniya Prison in July 2012  where Nimalaruban and Dilrukshan were killed I can list out a whole list of names, ….yes Kalutara….but the point is …..no, no, I am talking about custodial deaths – of a Government that calls itself a Democratic Government, a government that says that you have the best Judicial system in the country. How can custodial deaths go unpunished? I am not saying that it happened – it shouldn’t happen. But even when it happens, it goes unpunished. That’s the greatest slur to a justice system of any country. I think it was Winston Churchill who said that “The soul of a nation is judged by how you treat your prisoners”.  How are our prisoners treated? I mean the Vavuniya case I mentioned, Nimalaruban and Dilrukshan, they were held there on suspicion. Young men. They were beaten to death, several of their limbs… there were several fractures in their limbs when they were beaten. There were fundamental cases filed in respect of Nimalaruban.  Leave to Proceed was refused, by a person who occupied the office of chief Justice, and had to leave it. Now you have made him the permanent representative to the UN – you can’t find a better person? He made comments from the bench that is recorded in the published works by several organizations even in this book that I mentioned. That should never have come from any Judge. Kumarapuram, .. now I am going to areas where it wasn’t custodial deaths but nevertheless large numbers of people – 24 were killed in kumarapuram. Mirusuvil a few people were killed, one person was punished but recently pardoned. What’s the message? what’s the message that the country gives. Even in the rarest of rare cases where you want to show that something is happening and there is a conviction in the original court either the appeal court releases the people or even if that doesn’t happen there is an executive pardon given.

The Hon. Leader of the house responded to Hon. Thalatha Atukorale about Hon. Sivanesathurai Chandrakandan’s case and said, 4 ½ years he was in remand – 4 1/2 years. He thought that was a long time. I do concede 4 ½ years in remand is a long time. But what about the Tamil Political Prisoners? He used that word. He said: “ Deshapalana Sirakaruwan lesa salakanawada kiyala Ahewa”. What has happened to the actual Tamil Political Prisoners? I am not talking about Sivanesathurai Chandrakanthan, who is accused of murdering a Tamil National Alliance Parliamentarian Joseph Pararajasingam, on the 24^th  December night when he was attending Mass at the Batticaloa Cathedral. But what about the actual political prisoners? How long have they been in remand? Why are you not rising for the rights of those persons? They have been in remand for 20 years, 25 years some over 30 years. Why can’t they be released ? why doesn’t the Hon. Attorney General consent to bail in that case? Why does he consent to bail to only Sivanesathurai Chandrakanthan under the PTA? In one case the AG takes the position that he can consent to bail. In another case he says “No, under the Prevention of Terrorism Act, Section 7(1) proviso, in the high court I have no discretion to consent to bail. Why these double standards? I am talking about double standards in all of these cases. What about the Trinco Five? You gave assurance after assurance after assurance, to various international forums. No justice for those 5 students. What about the Muttur ACM workers – 17 of them? What about the 11 youth who were abducted in Colombo? Where is justice for all of that? I mentioned Joseph Pararajasingham. What about Raviraj? What about Sivanesan? Three Honourable MPs of this House. Murdered while they were sitting MPs. Raviraj’s case came up before the High Court in Colombo before a Sinhala speaking Jury. Under the PTA there is no Jury trial; but he was charged for murder as well under the penal code, just to enable a Jury trial. And after a long trial they were acquitted. The Attorney General has appealed. The persons who were accused and arraigned as accused in the High court were persons who were Naval intelligence officers. The Attorney General himself indicted them. So the involvement of State – and particularly that of the intelligence component to the State was admittedly conceded by the Hon. Attorney General himself. It is not only these cases. Even others: Lasantha Wickramatunga, Keith Noyar, Prageeth Eknaligoda, and scores of Tamil journalists were killed. Long list of names, there about 34. No investigation have been commenced in respect of even one,… only one I think there was some magisterial inquiry and that was the end of it.

Why is the state behaving in this way? Why is the Judicial arm of the state like this? And it is because of this that we have consistently said that we have no confidence in the Judiciary. Are we to be blamed? Are we to be blamed when you yourself trade allegations against each other – just hours ago? You did that! How are we to be blamed when we are always – almost always – at the butt end of justice. So that is why in respect of serious crimes that have been committed in this country, that is why in respect of international crimes that have been committed in this country, we have asked for international involvement – International Inquiry – International Judicial Processes. How can you deny that? How can you say No? When we can lay bare before you – not only we – you yourself did that a little while ago: you laid before the entire world the depths to which your judicial system had sunk. You’re so vociferous. You thought you were accusing the other side, but in fact you were accusing the Judiciary. And as I said, Justifiably so! 

Take some recent examples: and I want to pick some recent examples of a colleague of mine – Hejaaz Hizbullah – a brilliant lawyer. Hon. Minister of justice knows it very well. A brilliant young Lawyer denied justice for eight months, what are you doing for eight months? If you had evidence that he was involved in anything at all you could have charged him with that. What are you doing for eight months? All kinds of false allegations were made against him. When his house was searched and he was arrested, Hon. Minister, they took away two of his case briefs! Not even in a court of law can questions be asked with regard to communication between client and attorney and you know that very well. There are only two instances of privilege: one, Husband – wife and the other Attorney – Client. That’s how sacrosanct communication between a lawyer and his client is. But they took even his clients’ files.  Can’t he have clients? Can’t he handle cases for people who have later found to have committed other crimes? Is the lawyer to be blamed? Alright, even if you did that, in those files if you found anything you could have brought that to light. You could have produced him before courts. Nothing! Nothing to date. All kinds of spurious allegations are being made: something about a school – that he was involved in some school. Now that the school is still functioning. Nobody else has been arrested in respect of that school. That school is functioning; everybody is happily running that school. But he is detained for involvement in that school! I mean funny state of affairs, funny ministry! He was said to have got assistance from Qatar Charity, but Qatar charity is still running! It is still involved: the State is a beneficiary as well. So what is wrong with Qatar Charity? If you can have it, you can still use it, you accuse him of being involved with Qatar Charity. There is not an iota of evidence. I have not spoken about Heejaz Hizbullah until today, for good reason. If there was something against him, and there were investigations, let the investigators be free to find evidence against him. But after eight months – his wife just gave birth to a child, he hasn’t even been able to see his wife, access to lawyers have been denied. I know he will say it was given, sketchily here and there given, with a police officer sitting there and writing down every word that is spoken. I mean, you are a trained lawyer. Is that access? I am picking one case – one emblematic case – to show how many more, how many thousands more are suffering like this? I am picking that case because he is a lawyer. If you treat a lawyer like that, how do we expect you to treat anybody else any better? A lawyer who is well known, a lawyer who is regarded as a brilliant advocate in our courts is being treated like this. Any other Minister wouldn’t want to don the hat of Minister of Justice at a time like this. They would resign and go home! That is why I said you must be feeling like the Minister in Afghanistan of Ports and Shipping. That’s the kind of state this country is in with regard to Justice. 

Take the independent commissions: those commissions are supposed to be independent, by the acts that this legislature has passed, by that word it means that the tenure of the members who are appointed to it is secure There is a removal procedure, there is a removal procedure by this House, for cause. But what’s happening? You think you are in the 18^th century, where people hold office only during your pleasure? What is the meaning of independent commission then? What’s happening to the Human Rights Commission? There are persons whose tenure goes well beyond. Why are you putting pressure on them to resign? Why are you trying to appoint people while you have sitting members of that commission? This happened in the Eastern province, the Eastern province public service commission was there and the new governor went and appointed another person as the chairman of Public Service Commission. Fortunately, we were able to go to the writ court and get a quo warranto on that man and redress it. Next thing we know is that they have all been sacked! She doesn’t have power to sack any independent commission. What’s the point of having an independent public service commission in the province if the governor can sack persons like that? Hon. Suren Raghavan is not here, he tried that in Jaffna and failed. Now the latest: from yesterday, we are seeing the news about the Public Utilities Commission of Sri Lanka. I would have liked the Hon. Vasudeva Nanayakkara to be here when I spoke on this. He wrote to the Prime Minister, as Minister for water supply and utilities, he wrote to the Prime Minister and said that this is an important commission. But what happened? The secretary to the treasury says we have abolished this commission; how can you abolish a commission that is set up by law? PUCSL was set up by law in 2002 by Act of Parliament and it says it is an independent commission. How can you? This is executive dic tac, perhaps it works like this: if the President doesn’t like something, even if it was passed by Parliament, he says get rid of it. As he said: whatever I say – my words – are the circular. That’s why he says ‘Sir’ cular…he’s now called sir, cular… so ..that is how things happen today. 

So PUCSL members have been asked to resign now suddenly. Why are they being asked to resign? Why are they being asked to resign? Very serious, this is very serious: The Secretary to the Treasury calls and tells them to resign and threatens them, if not, there’ll be a parliamentary procedure like what happened to Shirani Bandaranayake! Persons who have done well in the industry who have some standing in this industries, give up much to come and serve on these regulatory commissions. They don’t want to be dragged through mud. They don’t want to be victimized politically like this. So they will resign and go. But what happens to governance? What happens to all of these? Through ages, through decades this parliament has established Laws so that governance is better; that regulatory functions are done by independent persons. They may not like it, this is not something new, not something surprising. The executive generally doesn’t like regulators. But that is desirable, that’s the way it ought to be. That’s the way the Parliament has willed that it should be. You behave like this and you are doing it so blatantly, no hiding it even, so blatantly. A new Minister for Prison Management! All this time, it was called prison reform, but the moment Hon. Ratwatte was appointed, it has been given an appropriate name, that suits him well: “Prison Management”. And with your name, people will know how you will manage the prisons. And shivers run down the spine of every prisoner when they hear your name. Thank you.

*Budget Debate – Justice Ministry votes – on  9^th December, 2020- speech made by M. A. Sumanthiran PC