18 September, 2020

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Judicial Decision Making In The Cases Of Bracegirdle & Gunaratnam

By Nagananda Kodituwakku

Nagananda Kodituwakku

Nagananda Kodituwakku

The arrest, keeping in the remand custody for inordinate period of time, prosecution and finally the Court ruling made in the Kumar Gunaratnam’s case should open the eyes of all concerned citizens of their immutable sovereign rights enshrined in the Constitution, that includes the Judicial power, the Court System exercises purely on trust.

Kumar Gunaratnam is a native Lankan, who had fled the country for fear of his life. Technically he is an Australian passport holder for immigration purposes, yet born Sri Lankan, who has lost his natural right of abode, as he had obtained Australian naturalisation, without retaining his biological right of abode. He was arrested on 04th Nov 2015 ‘for overstaying in his own native land’ and charged in the Magistrate’s Court.

For violation of visa restrictions, for persons born in or coming from a country other than one’s own birthplace, the Immigration law provides penal sanctions (a jail term of not exceeding five years and to a fine not exceeding two hundred thousand rupees at the election of the Magistrate). And the Legislature never intended this provision of law to be used against born Sri Lankans. In Kumar Gunaratnam’s case, the Court has imposed him a fine of Rs 50,000/- coupled with a imprisonment of one year in Jail ‘for over stay’ in his own birthplace.

How the justice system functioned under the British colonial rule

There was somewhat similar case occurred in the British Colonial period, popularly known as Bracegirdle case. Mark Bracegirdle was an Englishmen and a planter. During his stay in Ceylon, he was an undercover supporter of the Socialist movement formed by two respected socialist leaders, N M Perera and Colvin R de Silva. And on 3rd April 1937, he attended a meeting at Nawalapitiya organised by Dr N M Perera and addressed it criticising the exploitation of estate labour by British planters and threatening to expose scandalous abuses of poor plantation workers. He demanded that no planter should be allowed to break labour laws to abuse the poor plantation workers.Mark Bracegirdle

Photo- Mark Bracegirdle, seated left next to LSSP leader Colvin R. de Silva, in front of other party members in about 1937.

The British planters were very angry about this exposure made by a fellow Englishman and considered Bracegirdle’s conduct was ‘harming their prestige’. The end result was a deportation order issued on Bracegirdle by the then British Colonial Governor Sir Reginald Stubbs. However, Bracegirdle defied the deportation order and went into hiding.

The Workers Movement launched a campaign for the withdrawal of governor’s deportation order and on the May Day (1948) rally held at the Galle face green, it was demanded that Bracegirdle should be made a free man. At the said rally Bracegirdle made a dramatic appearance on stage, but the police were reluctant to arrest him. However, some time later he was taken into custody for violation of governor’s Deportation Order.

The LSSP led by Colvin and NM Perera the Leftist leaders, fought for the release of its comrade and challenged the governor’s order in the Supreme Court, then comprising only of English Judges, who apparently administered justice, independently, free from any control or interference from the British Governor.

On 18th May 1948, when Bracegirdle’s matter was taken up, the Bench was presided over by Chief Justice Sir Sidney Abraham. The Chief Justice Abraham, vividly demonstrating judiciary’s total independence from the governor’s control, ruled against the Governor’s order, in favour of Bracegirdle, and set Bracegirdle free.

This example shows essential prerequisites for representative democracy, which shall not prevail unless the three branches of the government (the Executive, Legislature and Judiciary) function independently. However, this does not mean that there shall not be any interaction between the three institutions. Yet, the Judiciary shall not compromise the judicial independence, which is fundamental to the upholding of rule of law. In their decision making, all Judges shall be made to accountable to the supreme law, the Constitution and the other statute laws, which the Judges must apply honestly, fairly, independently and with their integrity uncompromised.

In a representative democracy, the Judiciary that exercises people’s judicial power purely on trust, undertakes to protect, vindicate and enforce people’s judicial power at all times. Therefore, it is under duty to respect the principles of judicial accountability and independence, which underpin the public confidence in the justice system and the important role of administration of justice, as one of the three pillars upon which a responsible Government relies.

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Latest comments

  • 5
    1

    Mr. Kodituwakku,

    There is a world of difference between Bracegirdle and Gunaratnam. Bracegirdle never indulged in violence. The LSSP at that time and Bracegirdle were fighting against an old colonial order which gave arbitrary power to the Governor to deport people without recourse to the court. After they won the case, Bracegirdle left the country peacefully and lived in Australia and then England peacefully.

    In the case of Gunaratnam there is a long record of violence or even criminality. When he disappeared in 2012, I had no hesitation to express concern and protest as his life was at stake. However, the present situation is different. Even at that time he had violated immigration laws, but that was not a reason to abduct him threatening his life without bringing him before the law.

    This time he has again violated the visa conditions and was involved in subversive activities. He was convicted by a court and if there is any injustice he or Kodituwakku could appeal. What does he think of himself? I mean Gunaratnam! A person above the law? The results of his subversive leadership and activities were clear from the violent manner his supporters behaved before the immigration office in Borella the day before. Does Kodituwakku condone them?

    It is only partly correct to say that he fled the country for fear of life. He left before he would be caught by the law and of course at that time it was largely jungle law partly created by the activities of Gunaratnam and the JVP.

    Just because one is born in a country, that person does not automatically entitle to a natural right at whim and fancy to come to that country violating laws and indulge in subversive activities.

    The bottom line is this: Do we condone violence, violent behaviour and violent ideologies? Or do we uphold Rule of Law, peace and peaceful means to change laws if there is any infirmity or injustice?

    • 2
      0

      Dr Laksiri Fernando, Even though your comment and query is addressed to Mr. Kodituwakku, I have an interest in seeking some answers myself.

      Does Kumar Gunaratnam have an automatic right to citizenship of Sri Lanka, if not for his right by birth?

      Does Kumar Gunaratnam lose that birthright simply because his tactics are seen violent in nature or are even criminal?

      Were there extraneous circumstances that forced Kumar Gunaratnam to seek refuge outside his native land?

      Is it safe to assume that Kumar Gunaratnam sought citizenship of a third country under duress?

      Has Kumar Gunaratnam got to forfeit his birthright simply because he holds a citizenship of a country obtained under those circumstances.

      Is Kumar Gunaratnam entitled to get his legal status as a citizen of SL, back, based on the flow of above Q.

      Now, I am wading into unknown waters.

      Should Kumar Gunaratnam be given back his citizenship of SL first, before any legal proceedings against him for whatever criminal activities he had been involved in/with?

      Why is Kumar Gunaratnam asked to face a battle for his rights when many of those who are enjoying the protection of the State have a criminal record far worse than his?

      • 0
        0

        “Were there extraneous circumstances that forced Kumar Gunaratnam to seek refuge outside his native land? “

        [Edited out]

        • 0
          0

          If he has committed any crimes he should be brought to court and charged for those crimes immaterial if he is a citizen or not.
          After that he can ask for his citizenship like everybody else

      • 2
        1

        Mr Unreal,

        I cannot be unreasonable to Kumar Gunaratnamas as a person. However, he has done something terribly wrong and illegal even this time. When he was abducted in March 2012, I wrote “In this case Gunaratnam has done something ‘unlawful’ but that is not a reason to abduct or torture him” (Colombo Telegraph, 13 April 2012). The title of the article was “Abductions, Security Establishment and International Pressure.” There were over 50 cases of reported abductions at that time.

        You have asked me the following questions. The answers follow with pleasure.

        Q: Does Kumar Gunaratnam have an automatic right to citizenship of Sri Lanka, if not for his right by birth?

        A: As it appears, he has given up (or renounced) his Sri Lankan citizenship. Irrespective of his birth, he doesn’t have an automatic right to get it back. He could have remained a citizen of Sri Lanka by becoming only a permanent resident in Australia or simply as a refugee.

        Q: Does Kumar Gunaratnam lose that birthright simply because his tactics are seen violent in nature or are even criminal?

        A: He does not have a ‘birth right’ any longer as per my previous answer. He has renounced it. As far as I can see, his actions (not tactics) appear (not seen) violent. There are no mystical ‘birth rights.’

        Q: Were there extraneous circumstances that forced Kumar Gunaratnam to seek refuge outside his native land?

        A: It could be. You may know better. But he has gone beyond by renouncing the Sri Lankan citizenship.

        Q: Is it safe to assume that Kumar Gunaratnam sought citizenship of a third country under duress?

        A: It could be. But he also should not try to get his citizenship back by duress?

        Q: Has Kumar Gunaratnam got to forfeit his birthright simply because he holds a citizenship of a country obtained under those circumstances.

        A: That is what has append by his own actions.

        Q: Is Kumar Gunaratnam entitled to get his legal status as a citizen of SL, back, based on the flow of above Q.

        A: Of course he is entitled. But his other circumstances might interfere. Based on the flow of the above answers it is unlikely, unless he clearly renounce violence in my opinion.

        Q: Now, I am wading into unknown waters. Should Kumar Gunaratnam be given back his citizenship of SL first, before any legal proceedings against him for whatever criminal activities he had been involved in/with?

        A: You should appeal to the authorities! It is unknown waters to me as well.

        Q: Why is Kumar Gunaratnam asked to face a battle for his rights when many of those who are enjoying the protection of the State have a criminal record far worse than his?

        A: On the question of ‘his battle,’ it is not about his rights. It is about his illegality of mind and action. All others should be prosecuted one by one. Unfortunately, Kumar Gunaratnam is caught red handed.

        Please note that I opposed Rohana Wijeweera’s violence very openly in 1971 for the same reasons I do so now about Kumar Gunaratnam. He should renounce violence whether he gets back his SL citizenship or not. I have every right to appeal so because I am also his compatriot in Australia.

    • 2
      2

      Gunaratnam may have violated many laws and the prosecution selects the charges. In this case immigration violations and applied the rules relevant to this issue.
      The judge gives the the conclusion.
      It is therefore not enough that a decision be correct – it must also be fair and reasonable and readily understood.
      This is where Chief Justice has failed in his primary duty to court and the reason behind the Mr. Kodituwakku’s charges against the present judiciary.

  • 0
    1

    interesting story on Bracegirdle – thanks for the article… why do most of forumers think gunaratnam is dangerous ? he seem an interesting character

  • 3
    1

    People may not know anything about gunaratnam, he is a bon killer with 3 killings to his name.
    Govt. should open his old file and see what happens ..

  • 3
    0

    Dear Dr Laksiri Fernando

    I understand your concerns and comment about the difference between the two cases. Definitely there are differences. Bracegirdle is a native British who defied governor’s orders for arrest and deportation, whereas Gunaratnam is native Sri Lankan who had overstayed without visa. However, both cases relates to National Interests and the law relating to control of migrants.

    Whilst I respect your views, I must say that I am being guided and influenced nothing but the truth, the fairness and public interest. I have initiated many actions and spent my resources purely in the interest of my fellow citizens but expecting no return whatsoever.

    I must say that I have no concerns about the person called Gunaratnam and his political aspirations or his involvement in violence. But my only concern is the duplicity in the administration of justice and enforcement of law by the Attorney General.

    I believe that you are aware even the convicted criminals for serious offences are allowed to return to their native countries to spend the unspent jail terms. And there are repatriation of prisoner agreements between many nations for this purpose. For instance, the UK has repatriation agreements with many countries. This means that some prisoners can go to prison back in their own country.

    In Gunaratnam’s case, it is observed that he has applied for the restoration of his natural right of abode in his native country. I believe even a criminal shall not be denied his right to return to his native country but shall be allowed subject to strict adherence to the law of the land and strict regulatory mechanism to deal with according to law if found guilty for commission of any criminal offence.

    Having denied his right to return to his motherland, Gunaratnam was charged for violation of visa restrictions and sentence to one year in jail. If this is the state policy there shall be uniformity in the application of law and the same policy shall apply to all accused persons regardless of their political affiliations.
    In this country political leadership abuses the office to interfere with the administration of justice. Under Rajapakse regime, the Attorney General withdrew series of indictments served on Rajapakse loyalists and one can see that this abuse continue unabated.
    Take for example Ravi Karunanayake’s case. There was case in the Colombo High Court, in which Ravi Karunanayake, (now the Finance Minister), was indicted by the Attorney General for the commission of foreign exchange related criminal offence. The accused Karunanayake was charged on indictment only after the Attorney General satisfied that there was a prima facie case against the accused. However, when Yahapalana administration came into power, the same Attorney General had the audacity to appear before the High Court and to withdraw the indictment served on Karunanayake. In my view this is absolutely inappropriate and only shows the true nature of the administration of justice in this country, where equal people are treated unequally, which amounts to patent violation of the Constitution.

    • 2
      0

      Dear Mr Kodituwakku,

      I have by and large followed your views and actions on many injustices, and until this article I didn’t have any major issue but appreciation. My misgivings this time were mainly because of your misplaced comparison of Gunaratnam with Bracegirdle! Others, I have already expressed.

      I have been very familiar with the ‘Bracegirdle Affair’ as a student, teacher and a writer (Jathika Viyaparaya, Viyawastha Vardhanaya and Vamansika Viyaparaye Upatha, 1973, pp. 163-167). When Bracegirdle defied the deportation order, it was clearly intentional to oppose an archaic Queen’s Order (1886) supported by the Left and also the State Council. However, when Gunaratnam defied the Visa Order, he (or his party) was not directly or indirectly explaining the public why he was doing so. That is not the behaviour of a responsible political activist. This is not the first time that he was doing it. As far as I know, he applied for the citizenship only after he was arrested.

      More importantly, there is a difference between the ‘colonial rule’ and the ‘present system’ in Sri Lanka, whatever the weaknesses.

      I don’t know who appeared for Gunaratnam’s case, and also I am not a lawyer. But in your article you say in the first sentence that he was in the “remand custody for inordinate period of time.” Why then a Habeas Corpus was not filed? The whole handling of the Bracegirdle case was systematic and responsible. When Bracegirdle was arrested, immediately there was a HC case filed. During the case major fundamental constitutional issues were brought forward and thrashed out. I came to know once that it was referred to in by many professors in legal studies at the University of New South Wales (Faculty of Law).

      I do agree with you that there are major issues of rule of law, arbitrary rule making, political interference in the judiciary etc. However, I don’t believe ‘political rhetoric’ can be substituted for objective and fair public interest action or litigation.

      The breach of rule of law comes not only from the state, but also from non-state actors. This we have to keep in mind. We should also focus on this matter. Otherwise, we will fall into the trap of the anarchist tribe or the political opportunists.

      As I said before, the bottom line is this: Do we condone violence, violent behaviour and violent ideologies? Or do we uphold Rule of Law, peace and peaceful means to change laws if there is any infirmity or injustice?

      What do you say about it?

  • 0
    1

    Dear Dr Laksiri Fernando

    I fully agree and endorse your stand that no one who violates law of the land should be excused. And as I said before, I have nothing to do with this individual but my stand is firm and clear, that every person shall be treated equal before law and should have equal protect of law.

    I know nothing about this particular person’s past conduct, which, in anyway has no relevance to the issue that I discussed. May be he was involved in some criminal activity but the fact remains that he is not a foreign national who had applied of Sri Lankan Citizenship but a born Sri Lankan, who had lost his status for not retaining it when applying for citizenship in a alien country. And one should not forget that he had followed due process to have his status restored.

    I absolutely agree and reiterate that no person can be spared for any violent activity that disturbs social order. And I do agree that dissent one may have against the state party shall be expressed in appropriate manner, in nonviolent means. Unfortunately, in this country even the freedom of expression guaranteed by the supreme law of the land, the constitution, is not respected. The mainstream political parties that talk much about the sovereign rights of the citizens conveniently forget them once elected to office.

    I believe that you can remember the uproar caused by the UNP when in the opposition, when the then Executive President Rajapakse did not want the Right to Information Bill becomes law. When an attempt was made in 2010 by the then Minister of Justice and Law Reforms, Milinda Moragoda, Rajapakse bluntly refused it. He simply said that people of Sri Lanka need not require such a law, as any information would be divulged upon a request.

    Now it works other way around. Rajapakse clan demands strong vibrant RTI, whereas UNP try to water down its content. This is the true state of Sri Lanka’s five star democracy.

    Although I disagree with some of your comments I fully appreciate and respect your view.

  • 0
    0

    Some documentation, notably in the wikipedia, details under Sir Sydney Abraham describe Bracegirdle as an Australian and not a Britisher. Sir Sysdney was the CJ of Ceylon from 1936 to 1939. So there seems to be a discrepancy when Nagananda states that this case was heard in 1948 as per the article published in the CT. (“On 18th May 1948, when Bracegirdle’s matter was taken up, the Bench was presided over by Chief Justice Sir Sidney Abraham.”).

    Basically Nagananda has made his point. The white men, particularly when sitting as judges were careful to appear as impartial, fair and just as possible. Once in a particular Kachcheri of the yesteryear, the Government Agent, his Assistant and the Administrative Officer were all white people. The Assistant Government Agent was concurrently the District Judge and had to summon his boss to give evidence in a given matter. The boss thought it was not done for the subordinate to summon him. The dispute was resolved by the Administrative Officer who said that while inside the Kachcheri the Government Agent was the final authority and within the ambit of the court house and judicial sphere the District Judge was the authority and it was necessary for the GA to answer summons of the court and he jolly well did.

    We may treat the white men as aliens in order to prop-up our national pride. But the country of the white man has no written constitution at all. No fundamental rights like us. But by and large the bar there does not claim instances of gross injustice on the part of the judges. That is the beauty. We have never heard of sitting Judges of superior courts in the white man’s land (UK) to be charged in courts involving child offences etc.

    Kumar Gunaratnam may be a maverick. I don’t like him nor his behaviour. But the fact remains that he is an ex-Sri Lankan. I believe ex-Sri Lankans generally can have residence visas over the counter. Then why at least give the man his due right of a residence visa. The chap may oppose our views and may use harsh words at us. However, as good citizens we must respect others rights. If not we fail to be within the bounds of civilization.

  • 0
    0

    Nagananda.

    This was the first case that the Great H.V.Perera argued after taking silk!
    Also he appeared gratis on behalf of Bracegirdle.
    The year was 1937/1938 and not 1948.
    Even Homer nods!

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