3 December, 2020

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Presidential Regret Is Certainly Not The Core Question

By Kishali Pinto-Jayawardena –

Kishali Pinto-Jayawardena

Protesting Muslims who thronged Colombo’s streets demanding public attention in regard to the plight of their community in Mannar are as much a part of the democratic process as lawyers protesting against the attack on a court house in Mannar and the Judicial Service Association abstaining from sittings in protest against the attacks on the Mannar magistrate cum District Judge. There is little to be perturbed about in such protests. To take a contrary view would be to deny these protestors, the freedoms of assembly and association which are constitutionally guaranteed rights.

Proper remedies against contested orders

Certainly enormous tensions had been evidenced not only in Mannar but in other area of the East where both Tamils and Muslims fleeing the conflict in the North or (as the Muslims were) summarily ejected by the Liberation Tigers of Tamil Eelam during what can only be termed as the ethnic cleansing of the North, have been ‘temporarily’ relocated, leading to dangerously escalated resentment by the local communities who see their lands and livelihoods being affected on a ‘permanent’ level.

In the case of Manner and the dispute between the local fisherfolk and the relocated outsiders, these tensions came to a flash point recently, converging quite unfortunately on a particular judicial order which though perfectly fair in its substance, was visited by a mob response. There is after all, a time-honoured remedy for challenging a judicial order; namely, having it set aside in appeal. If there was bias or partiality on the part of an officer of a subordinate court towards a particular party in a case, there is the remedy of petitioning the Judicial Service Commission. Ordinary realities being such, such a complaint would have caused more than a ripple in the waters as differentiated from the ordinary run of complaints wending their painfully slow path to inquiry. However, these were not the remedies resorted to. On the contrary, we had a mob throwing stones at a court house and attacking the chambers of a judge.

Craven leadership of the Bar

Amidst the welter of allegations surrounding this incident, the judicial officer concerned has unequivocally stated on record that he had been threatened by a government minister. It is basic commonsense to acknowledge that a judicial officer of the subordinate courts (being Tamil in ethnicity in addition) would not have resorted to such a complaint against a minister if the circumstances were not such as to leave no other course of action open to him. Official records indicate that phone calls had taken place from this minister’s phone to the judicial officer concerned. Of course, this may well have been to engage in a friendly chat regarding the excellent quality of prawns available at that time of the year in Mannar but the possibility of that conversation is rather remote to say the least.

Circumstantially moreover, the attack on the court house is hedged around by too many factors indicating that the mob did not act on its own in engaging in such actions that would have normally led to severe penalties if there was no assurance of immunity given by the instigating politicians. These assurances, as we can see now, are fully justified in actual fact which is a point that we would return to later.

So in that context, the filing of contempt of court charges against the minister concerned in the Court of Appeal this week is a salutary step. The immediate question that arises however is as to why the petition on contempt of court was not filed by the President and the leadership of the Bar Association? The reasons for such abstention may be an open secret on Hulftsdorp Hill but it is nonetheless a shameful reflection on those who should have been expected to take the lead. To take refuge in procrastination and prevarication in such a grave matter is to invite greater disasters in store for the Bench as well as the Bar. It is as if the executive is being issued an open invitation to do what it wills with the country’s judiciary. If that is the craven message that is intended to be given by the Bar Association of Sri Lanka, so be it.

Presidential assurances not sufficient

As observed in these column spaces last week, the very fact that such an incident took place indicates the enormous deterioration in the political environment vis a vis the judiciary.  Although the attack on the Mannar court house took place more than a week ago, the suspects have still not been identified despite the mantra of ‘ongoing investigations’.  This was predictable.

Also as predicted in last week’s column, it was to be expected that the government would trot out its old refrain of attacks on the judiciary during the time of the United National Party in the eighties. It is unfortunate however that none other than President Mahinda Rajapaksa himself thought it appropriate to refer to these past incidents as if doing so would make the current attack on the independence of Sri Lanka’s judiciary, less serious. It is quite beside the point to be ‘saddened’ or ‘regretful’ in regard to the suspicions entertained by the country’s legal community ‘against a minister of his government’, as the President has reportedly said early this week. Sadness or regret is not the core issue.

Neither are Presidential pronouncements on the Rule of Law and the determination of this government to ensure that the law is followed, also informed to the country at large at this meeting. And quite frankly, one cannot make any sense of the statement further attributed to the President that he is a lawyer and that ‘lawyers work cordially with the judiciary.’ Whatever it may be, Presidential statements at public meetings do not meet the need for swift action to be taken against the perpetrators of this attack on a court house and on the chambers of a judge. The fact that this Presidency is not inclined to engage in such action appears however to be abundantly clear.

Equal parts of skepticism and mockery

That said, political commentators last week advanced the argument that protests by the legal and judicial fraternity over the Mannar incident will not evoke much public sympathy given the general silence on the part of the same when basic rights of innocent people from North to South were trampled upon by this government. Certainly, there will be empathy from many quarters with this bitterly articulated point of view.  The reneging of their public duties in upholding the Rule of Law was never more evidenced on the part of the official and unofficial Bar than during these unhappy times. Some days ago, we saw a newly appointed Attorney General affirming blithely that the fact that the Department of the Attorney General comes under the Presidential Secretariat will not ‘affect their duties’ in any way. Such blithe assurances fall upon an unbelieving public ear given ample testimony in the past years of politicized prosecutions as well as the politicized withdrawal of prosecutions under this administration. As much as grandiloquent Presidential pronouncements on the Rule of Law are to be scoffed at, these assertions also invoke equal parts of skepticism and mockery in the face of practical evidence to the contrary.

That said and conceding all the faults of the legal community in this country and of the leadership of the Bar (official and unofficial), if public support is not forthcoming on the larger question of pulling back from the brink even at this late stage in the wake of the attack on the Manner courts, then the consequences can only be disastrous for the country as a whole. This must be clearly acknowledged.

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Latest comments

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    This incident in Mannar is just one of many others simmering under the surface and ready to erupt at any time. It is all due to bad government policy and politicisation of the process. Muslims and Tamils are at each other’s throats.

    Does the government deliberately want this to happen?

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      Absolutely correct. Way to postpone the Provincial Council elections in NP

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    WHY NOT APPOINT THE NEWLY QUALIFIED SYNTHETIC LAWYER, TO THE BENCH IN MANNAR, TO BRING A TRUE AND FAIR JUDGEMENT AGAINST THIS UNRULY MOB AND THE MINISTER INVOLVED.

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    This newly synthetic lawyer will be ‘gobbled up alive’!

    I think I agree that the government is very pleased that this happened and that sinister Gota must be sitting and rbbing his hands together in glee.

    What is left of this country?

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    I am sick of tire of politicians referring to history. Enough Is Enough. We voted for you for a better future not for you to repeat what those fools did

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    The learned lady has a great point when she has stated that the protests made by the affected Muslims of Mannar and the protests made by the Mannar lawyers and the BASL in respect to an incident reported to the Court of Appeal are as much part of a democratic process and there is little to be perturbed about such protests. The learned lady also states that “To take a contrary view would be to deny these protestors, the freedoms of assembly and association which are constitutionally guaranteed rights”. Thus, accordingly, the protestors had assembled lawfully and exercised a constitutional right enjoyed by them to the point/moment the learned magistrate had supposedly indulges at the instigation of another judicial officer, to issue shooting orders to the police in person walking into the court compound. The protesters have been seen more than 300 meters away from the court compound. These two incidents which have been reported by the press and media and can be considered as direct evidence or circumstantial evidence, as may be the case, during the hearing. Under the presumed situation, question arises as to whether the learned magistrate attempted to indulge in an action to obstruct a constitutional right of the protestors? Is it possible that this action may be called for to be subjected to the scrutiny under the laws of provocation? In fairness to the magistrate – the statement made by the learned lady “There is after all, a time-honoured remedy for challenging a judicial order; namely, having it set aside in appeal is respected, but the reality was – how many of the protesters (the Muslim fisher folks) did know this “legal due process”.
    Provocation being an issue of concern, it can be that “stone throwing” as reported had happened after tear gas had been administered by the police, even though the learned magistrate had issued shooting orders below the knee to disperse the protesters. The renounced French Social Psychologist and Sociologist, Gustave Le Bon in his book “The Crowd” – 1895, explains why all crowd events occur. Le Bon did not assume that crowd members were psychologically disturbed or abnormal before they took part in the event. Instead, he focused on factors that occur within the crowd that make it possible for normal people to engage in abnormal or even barbaric behaviour. Le Bon concluded that crowds are quick to act, do not take time to reason, and can be quite powerful. Le Bon’s scholarly thoughts have been acknowledged in many court rooms. A comparative study of law and social-psychology taken into consideration the news reported in the media, clearly shows there was “crowd” action due to provocation. The question is, is it correct to conclude that the attack on the court house is hedged around by too many factors indicating that the mob did not act on its own in engaging in such actions that would have normally led to severe penalties if there was no assurance of immunity given by the instigating politicians? The answer is NO. It was a “Crowd reaction to the Magistrate’s shooting orders”.
    With regards to the filing of a petition in courts, does not mean that the suspected politician is guilty of the assumed guilt/action, namely “threatening on the phone”. By law, The Court could not have refused the petition. Thus the suspected politician has been summoned to the court to be present on September 5th., 2012 for the court to find out the facts. Considering this argument, the constitution also says “The basis of law is that one is presumed innocent until or otherwise proven guilty”. The Constitution of Democratic Socialist Republic of Sri Lanka – Chapter III – Fundamental Rights, Section/clause: (5) states clearly: “Every person shall be presumed innocent until he is proved guilty”, (Until proven to the satisfaction of the court that he is guilty). The police may have recorded the complaint based on “circumstantial evidence” provided by the learned magistrate or the members of the legal profession. It is therefore not appropriate for anyone to demand the judiciary or the guardians of law to arrest the suspected politician and imprison him. Therefore the filing of the petition for contempt of court charges has to go through judicial review before guilt is announced. Again, it is for this that this politician has been summoned to the court to be present on September 5th., 2012 for the court to find out the facts.
    With regards to the telephone call, the statement that the Official records indicate that phone calls had taken place from this minister’s phone to the judicial officer concerned can be assumed true. But the question is, who took the calls? Again this is a sub-judice matter and cannot be concluded that it is a “contempt of court” offence committed by the politician in question. The learned bench of judges of the Court of Appeal has still not made a decision as to whether or not this call was made by the suspected politician in question. It can only be considered as statement of evidence.
    Chapter 14, Part One of the Evidence Ordinance (3) sates thus: ……..A fact is said not to be proved when it is neither proved nor disproved. Again, it is the court that will decide whether this is valid evidence or not. For the Rule of the Law to follow in this country, we have to be patience to await “Due Process”. The Court of Appeal is doing it. Therefore, even though the Court of Appeal has accepted the petition – this suspected politician is still “innocent” of the accusation related to the telephone call, until proven to the satisfaction of the court that he is guilty. It can be assumed that this may be the reason as to why the petition on contempt of court was not filed by the President and the leadership of the Bar Association? The questions in the larger picture of the legal screen is – Is the learned magistrate in violation of the “Rule of Law” and the Bar Association President and the leadership guilty of “contempt of court”? The Presidents assurance made at the National Farmers Week exhibition to mark the centenary celebrations of the Agriculture Department in Gannoruwa on Sunday (22) July that the government’s intention to uphold the independence of the judiciary will apply not only to accused, suspects, politicians, peace officers of the law, but also to the guardians of the courts of law, including the official and unofficial of the Bar in this country. The Presidents stand on this is beyond question. No citizen of Sri Lanka should have doubts of that statement.
    Noor Nizam.

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