AN ACCUSED CANNOT BE ADDRESSED AS PRISONER IN THE DOCK UNTIL PROVED GUILTY.-Chapter III – Fundamental Rights, Section/clause: (5)The Constitution of Democratic Socialist Republic of Sri Lanka needs to be defended.
Posted on August 5th, 2012

By Noor Nizam – Canada – August 5th., 2012.

 In a recent publication on the web of an internet newspaper the Colombo Telegraph dated July 29th., 2012 an article under the heading the “Presidential Regret Is Not the Core Question” was published for readers who were concerned about the incidents that took place in front of the Mannar Court premises on July the 13th., 2012. The article was written by a learned lady with due consideration to the “Rule of Law” and “Governance”. There were certain issues raised to the Constitutional Rights of a Citizen of Sri Lanka under the which were not clear to me as a reader. Thus this analytic presentation is made only to enhance the informative content of that article –http://www.colombotelegraph.com/index.php/presidential-regret-is-certainly-not-the-core-question/

 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.

2 Responses to “AN ACCUSED CANNOT BE ADDRESSED AS PRISONER IN THE DOCK UNTIL PROVED GUILTY.-Chapter III – Fundamental Rights, Section/clause: (5)The Constitution of Democratic Socialist Republic of Sri Lanka needs to be defended.”

  1. Lorenzo Says:

    I agree.

    But Kasippu Joseph is GUILTY until proven innocent.

  2. jayt Says:

    Sinhalese must put a foundation immediately to detect outside setups on daily basis. Sinhalese are daily subject to various traps. In the last few DAYS SINHALESE got caught up in many traps. one is chinese travelers guided somebody to break up friendship. Just before that, buddists montks foolishly fallowed instruction of a group to attack a mosqe. if there is any problem, it should be done by court.

    Yesterday, there was attack on Sikh temple in US. This seriously need to be study. but We never know yet but to be safe side, this could be very well work some of groups to manipulate indian government to buy continuously indian companies to destroy indian sovereignty which give them future more access to sri lanka.
    In the near fast, it had happened. I noted it on this web. That was when indian communities were attack in US. there had some deals in that week between indian and western countries. Some body got indian to sell indian news paper, I do not remember which month or which country bought indian paper but that is an example.
    Therefore, should not wait for politician. there will stay power and foreign groups will nicely tricks sinhales to vote them by using global propaganda and will steal all sinhalese rights by manipulating top leader of the govt. And what happening now with govt.
    Large number of military offecers should be appointed to embassies around the world where are finally sl expats patriots can meet them on daily or weekly basis and put foundation to stop global groups taking over sinhalese businesses and destroying the sinhalese country from various front. Funds are needed in massive amount but can obtain it with little effort.
    The victory here finally sl expats can exchange daily info that sl missing and can find guaranteed solution to every problem arise on daily basis . And when the world see sinhalese too can spy, they will choose friendship rather than conspiracy

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