C.Wijeyawickrema, LL.B., Ph.D.

Introduction

[six lawyers= AG/DSG+2 AC judges +Magistrate+ Senior St. Co.+ private attorney monk= Ven. Galabodaatte Gnanasaara]

Inspire public trust and confidence”

Nobody disputes the motto of the Supreme Court (SC) and the Court of Appeal (CA) copied above, which is applicable universally to any court of law in the world. The question, however, is that judges entrusted with this noble task are mere mortals, not saints. For example, a recent case handled by these two courts in Sri Lanka did not make lot of people (specially Sinhala Buddhist) comfortable. The decision given by CA on the contempt of (Homagama magistrate) court case against the BBS leader Ven. Galabodaatte Gnanasara (GG) is laden with several minor (factual) and two major (legal) problems. Subsequently, the petition submitted to the SC seeking its permission to make an appeal was dismissed by it in a very unfortunate manner, reminding one the famous rule of natural justice, not only must justice be done; it must also be seen to be done.” One of the judges who disallowed the petition was an active opponent of BBS in the recent past when he was an officer of the (publicly anti-BBS), Sri Lanka Bar Association.

In America, there are hundreds of law school law journals, in which one can find essays critically analyzing court decisions. Such scholarly work helps everybody, including the judges. In USA, continuing education is mandatory for judges.  I do not know if Sri Lanka has law journals or if there are any good faith efforts by legal professionals to dissect court decisions. For such service one does not even have to be a lawyer. If democracy requires voters to be vigilant, an intelligence check on judges’ decision-making process is a healthy sign of a people-centered judicial system.

Today, we see only one such effort from an applied law (efficacy of law) perspective. Public interest lawyer Nagananda Kodituwakku has challenged former CJs, SC judges, AG’s Dept., and Bar Association officers for improper and unprofessional behavior. He is not afraid of contempt of court threats, but other lawyers are afraid to sit next to him at SC proceedings because they fear such ‘bad association’ could affect their pocket book sooner or later when they appear with their clients. Ravaya’s Victor Ivan has written a courageous (documentary) book, the silence of the court,” which disclosed antics of the legal establishment from lower to the highest level. Then there are examples of rash outbursts by juvenile politicians, who spoil the cake. There is no question that some of our courts of law are under severe stress, partly due to their own misbehavior. Only one name, Victor Tennekoon, former CJ, left his job with his and his court’s dignity intact.

I began to write this essay, long before the political crisis started after, the October 26, 2018 bombing of his yahapalana prison by prisoner Maithripala Sirisena himself, which dragged both SC and CA into dirty political arena. What this means is that courts are compelled to weigh political facts (not law) and make subjective judgements on whether the president acted fairly and not arbitrarily. Inherent in this task is the reality that one side to the dispute will be unhappy and angry with the judges! Despite these darker clouds on the horizon, I think what I wanted to write must proceed because it is an important story the country should not forget.

Background to BBS case

The first thing we do, let’s kill all the lawyers”- Shakespeare

A discussion of background information relating to this case is helpful in our task of analyzing the decision of CA in its objective and subjective context. Many statements in the judgement reveal the judges’ personal ‘bias’ (prejudice) against the accused in his role as the leader of BBS. The behavior of the AG’s dept. during yahapalana years, has given people an impression that it is a politically bias agency operating against the Buddhist monks targeting those who are actively engaged in socio-political problems created by the politician class (black-whites). It looks like that the anti-Buddhist arrogance of this agency is contagious, going against the Sinhala Buddhist heritage in the island. For example, in the case that sent Ven. Galabodaatte Gnanasaara to jail, the public record of the Court of Appeal, mentions AG as Hon. AG,” and Ven. Gnanasaara (GG) just as Galabodaatte Gnanasaara.” Why did it not cite GG as Ven. GG?” (or at least as monk GG). Is this a trivial matter? I do not think so. Do they treat other religious clergy the same disrespectful way, in the rare case of one of them become an accused? (rarely, because they do not fight publicly on social issues).

How does this attitude operate at the street-level or one step above? On 19th November 2018, at the old parliament building, a small group of monks came to hand over a petition to president Sirisena appealing him to pardon Ven. GG. A man from president’s office came out and told the monks that they could see the president at the end of December! After this crazy response, the police used tear gas and water canon to disperse the crowd. Later, at a meeting arranged by Tilanga Sumathipala, the president apologized to the monks, and said that he was not informed of the monks’ arrival to hand over the petition. Neither was he consulted by the police before using tear gas against the monks. How shoddily some officers of the government (judges and/or court clerks, civil officers, police officers in this case) treat the monkhood in the country is evident without doubt. The monks experience more than other sections, the dirty side of suddage nithiya.

Balu kuudu (dog cages) and AG’s Dept.

Ven. Bengamuwe Nalaka said recently (Oct. 2, 2018) that the AG’s Dept. and the police intentionally fabricated a false case against Ven. Ganansara. The public record is that the officers of the Bar Association also hated BBS. In fact, the latest news (Oct. 5) is that SC judge Prasanna Jayawardena (with Nalin Perera agreeing and Eva Wanasundara opposing) who decided against Ven. G’s appeal was an ardent ‘enemy’ of BBS when he was VP of the Bar Association. This is against the principles of natural justice. He should have recused from hearing this appeal. More importantly, unless a full bench of SC is activated, BBS case now has no judicial option, despite the fact courts only implement the judicial power of the people of Sri Lanka.

Monks and laymen are careful not to add the courts into this allegation. Their formula is perhaps based on what Mrs. Chandrika said some time back that balu sena will be put in balu kuudu (dogs and dog cages).” As discussed later in this essay, if the AG’s Dept. studied the facts of the case carefully using the video clip evidence, the CA would not have made the two fatal errors in its judgement that I have found.  AG’s Dept. should have advised the court not to proceed with the case. But this was a case of lawyers from different state entities working in collaboration to fix from their perspective, a notorious monk, and their biased minds must have missed the legal theories supporting the monk. It also depends on how these lawyers as citizens of this country view, sometimes critical, role monks have played in the 2500-year old history of this island. The history records how a king of Kandy wanted to kill Weilivita Sri Saranaka Sangaraja for opposing and agitating for his ouster. A person who has no knowledge of the Sinhala Buddhist heritage cannot appreciate the roles played by monks such as Migettuwatte Gunanada, Gangodawila Soma or presently, Ven. GG.

It is no secret that ever since BBS started (May 2012) its militant Buddhist movement (militant in Gandhian and MLK (USA) sense), not just anti-Buddhists but the entire black-white political establishment in the country, including the officers of the Bar Association, hated it, and wanted to ‘kill” it just like somebody killed (December 2003), the previous Buddhist awakening started by the late Ven. Gangodawila Soma. Ven. Soma got trapped due to his human weakness (a desire to get a worthless Ph.D., secretly arranged, via a Sinhala Christian Russian agent), and the whole country knew very well that enemies are waiting in the dark to get Ven. Gnanasara ‘trapped,’ sooner than later. The monk himself knew about this danger and of late acted cautiously both as a private individual and as the BBS leader, but tear drops fell on his arm from one of the helpless soldiers worshipping him after the Homagama magistrate re-remanded them on war crimes charges, the monk’s heart melted taking momentary control over his brain!

Ironically, law recognizes this kind of emotional reaction known as the defense of grave and sudden provocation, but the monk was destined to be disallowed that universal benefit. A judge who understands almost mechanically (like we brake automatically at traffic red lights) the application of this defense in a murder trial, depending on his perceptions and attitudes may not realize the applicability of that defense in the case of a monk devoted his life to protect Sinhala Buddhist lost rights in the country. Even if AG Dept. either forgot or ignored the relevance of this defense to this accused’s case, the judges of CA have a statutory duty to examine the applicability of this defense in mitigating his punishment. The facts in this case would have taken a totally different shade if the accused was given the benefit of this universal defense.

Law is [not] an ass

I read the decision of the Court of Appeal (CA) on this case, and the moment I saw how the case was listed on the CA website, I was greatly perturbed. I found two factual errors made by the two CA judges, that go to the heart of the prosecution’s case. Law is not an ass, but some lawyers and judges make law an ass, because they too are human.  It was only a few days ago that Ms. Sugandhika Fernando revealed that the Bar Association president U. R. de Silva, in his pep talk to a new set of female lawyers preached that they should use one or two of their 64 mayams (feminine tricks?) to get favors (such as early hearing dates for their clients) from judges. What a disgrace to womanhood and to the legal system!

The USAID recently commenced a million-dollar project to ‘modernize’ (to Americanize with its notoriously defective justice system?) the justice system in Sri Lanka. They even gave a separate grant to the SL Bar Association. American help to modernize can mean different things to different people. A coherent, open, responsive and effective justice program (CORE) means what?  Are they giving computers or try to brain-wash targeted personnel? Would they promote legal scholars or lawyers writing critical analyses on court decisions that they think incorrect?

I felt the CA decision was defective, and I think the BBS monk should file a fundamental rights violation case against the CA, because the SC had already refused to give permission to file a normal appeal. I wonder how SC did not see the two glaring errors that I saw in the CA judgement. If a monk like Ven. GG could be treated like this what must be happening to hundreds of others?  Depending on how one looks at the role of BBS as a national movement, one could decide whether the monk is politically guilty or not, but a court of law must be objective and decide cases based on facts, in this case facts are in the public domain.

Naked title

Galagodaaththe Gnanasara Vs.Hon. Attorney General-Hon. P Padman Surasena (P/CA), Shiran Gooneratne (decided on August 8, 2018).”  This is how the Court of Appeal website lists the case against the Bodu Bala Sena (BBS) leader Ven. Gnanasara. He was given a punishment of 19 years of rigorous imprisonment for ‘insulting’ the Homagama magistrate Ranga Dissanayake. In another recent case, a complaint by a monk relating to the pollution of Tissawewa, decided on September 4, 2018, the listing style was Venerable Halmillawe Saddhatissa Thero and others Vs R. M. Wanninayake and others-Hon. Mahinda Samayawardhena. (J).” In each case a monk was involved in a public affair. It was not about rape or murder by a monk.  In the first case, what was the reason that the term ‘Hon.’ was used for the legal eagles while the monk’s name was cited nakedly as ‘Galagodaaththe Gnanasara?’ Who made this decision?  Who decides who is a ‘Hon.’? The Hansard is full of ‘Hons.’ But one reason why a monk is addressed as ‘Venerable,’ is because his robe represents part of the Triple Gem in Buddhism.

It was because of this national norm, that in the previous case of monk Vatareka Vijitha, the magistrate did not ask the monk Gnanasara to stand in the accused’s box. On this incident, the lawyer for the monk Vatareka, Maithri Gunaratane, now a new political party leader, complained that the magistrate was violating the human rights of his client by allowing the accused to sit in a separate chair instead of the hira kooduwa!  Another female Tamil magistrate went beyond this, and arranged a chair covered by a white cloth for an accused monk to sit, and there was no objection from the Tamil lawyers.  Thus, reasonable judicial discretion is a prerogative of judges. In this regard, one must note that the Homagama magistrate, used his discretion to report the Ven. Gnanasara to the Court of Appeal, because, he said that he did not have authority to impose a punishment, severe enough, for the criminal offence committed by the monk!

Hon vs. Ven

Coming back to the Hon-Ven issue, only such scenario in the world (if one video tapes the ceremony of how a layman becomes a monk) where a son worships his mother first, and a few minutes later that mother in turn worships her son, is associated with the concept of monkhood in Buddhism, which was above the kingship of Sinhale for 2500 years. The queen of England is below a monk in Buddhist hierarchy of politics. Semantics apart, if Judges are ‘Hon.’ and the AG is ‘Hon.’ irrespective of the fact whether the holders of the respective positions are qualified, honest or moral, the same standard or same courtesy should be applied to the concept of monkhood. Lowering the dignity bestowed upon one concept (the yellow robe), intentionally, inadvertently or due to stupidity or ignorance, automatically lowers the dignity offered to the other (learned counsels wearing a black coat with a pocket on the back) especially, when it happens next to each other in the same sentence.

Judges cannot be immune from the currents and cross currents occurring in Sri Lanka, especially since 1978. The thinking that courts decide cases within the framework of case law and legal case books, was abandoned as far back as in 1954 in the landmark case of Brown Vs. Board of education, when extra-judicial sociological evidence was accepted by the U.S. Supreme Court in overruling its own 70-year old previous decision. Besides, judges are human and can never be objective because everything in this world is relatively linked to a continuum running from subjective to objective. courts need to understand that they are part of the society and bound by the societal norms. If somebody attached to the CA thinks that calling or citing the name of a monk without the traditional honorific is acceptable, he should be required to attend mandatory continuing education classes. It is no different from other incidents such as the title, Budunge Rastiyaduva, or Mrs. Chandrika’s radio drama, Nirvastram Paraman Sukan.

Two Fatal errors

Publicly disrespecting a monk without using the honorific Ven could be an unfortunate attitude of some judges, but it is no reason to suspect the specific intent of the two judges who handled this case. Instead, one must see if there are specific facts which are clearly erroneous. It is now an accepted fact that even an eye witness account could be different from reality. Thus, several persons witnessing an incident could ‘see’ it differently, depending on their status of mind, ideology, perception, angle of vision, distance etc. Referees of football games now use video footage as a recording of absolute truth for instant correction of their mistakes. Placebo effect means mind has controlling power over matter.

Videotaping (and CCTV) technology has become a savior of life and liberty in the modern world. The CA decision states that (1) the monk Gnanasara did not apologize to the magistrate and (2) he called the AG dept lawyer a ‘napunsakaya.’  But the video clip attached prove otherwise.  It shows the monk apologizing to the magistrate not once but twice in no uncertain terms. The intention to insult a court is a deciding element in a contempt of court hearing, and the CA judgement is unacceptable with this contrary, concrete evidence. The derogatory term was used as ‘this napunsaka government,’ and not as ‘this govt lawyer.’

http://lankacnews.com/%e0%b6%a5%e0%b7%8f%e0%b6%ab%e0%b7%8f%e0%b7%83%e0%b7%8f%e0%b6%bb-%e0%b7%84%e0%b7%92%e0%b6%b8%e0%b7%92-19-%e0%b7%80%e0%b7%83%e0%b6%bb%e0%b6%9a%e0%b6%a7-%e0%b7%84%e0%b7%92%e0%b6%bb%e0%b7%99%e0%b7%8a/

It is strange why the monk’s lawyers did not present this video tape clip as evidence.  It is also strange why two monks who gave evidence on behalf of the monk said contradictory stories, which the judges used against the accused monk. The evidence used by CA was what the three lawyers said in the court and not the video tape recorded at the scene when it took place.  Lawyers are not supposed to coach prospective witnesses to tell lies, but under an adversarial system of litigation, lawyers have a duty to examine the witnesses in advance, assess them, and decide not to use them if their evidence is going to harm the accused instead of helping hm. The use of such evidence by a court to impute criminal intention is a case of cutting pork on a leg of pork.

Balu Theendu and BBS

When S B Dissanayake was sent to jail for branding SC decisions as balu teendu (decision by dogs?), his intention was crystal clear. He did not apologise. Or, the pending case against Ranjan Ramanayaka for condemning the court system as corrupt, his purpose in doing that is not clear. When Nagananda Kodituwakku goes to SC with briefs against SC judges, Chief Justice or the AG, no one said his purpose was not noble. The way BBS monk was trapped using clause 105 of the constitution is unique. The magistrate Ranga Dissanayake had a dialogue with the monk and the monk accepted his mistake, gave an explanation as to why he had to talk and apologized twice and went on to ask the judge in the Gandhian style to impose appropriate punishment for his behavior. All this is on the video clip. The magistrate could have fined him, imprison him for the day, warn him or sent him to jail for a longer duration. The magistrate was aware that he was dealing not about a solitary monk, but a kind of national entity. He would have settled it in a casual manner, if not for the intervention of the AG dept lawyer Dileepa Peiris and the JVP-connected lawyer Upul Kumarapperuma, who appeared for the wife of an allegedly disappeared person, Ekneligoda.  With their intervention, the magistrate lost his judicial independence and discretion. A minor incident became a national issue.

The facts of the case, the reaction of the magistrate as recorded on the video, do not justify his subsequent opinion, that the monk should be punished severely, and for that purpose monk’s behavior should be reported to CA, because he has no power to impose a punishment like 19 years of rigorous imprisonment. In S.B. Dissanayake’s case the complaint was by ordinary citizens, perhaps motivated by partisan politics. In BBS case, it was instigated by two biased lawyers who found a golden opportunity to trap the monk for his work in exposing the black-whites’ game. It is clear from the evidence gave by the magistrate that he had to make a case in narrating what had happened, so that he could justify why he wanted to report the incident to CA for severe punishment instead of a lighter punishment that he could have given then and there. The lawyer for the monk argued on this basis, but CA refused to accept it. The million-dollar question is why the court did not see the video clip, which makes court’s position untenable!

Objective/Subjective Test

It is a common belief that a judge usually has an opinion formed already about the case pending before him and gathers facts and evidence that he wants to justify his decision. Often, words and statements in the judgement provide hints as to the way a judge’s mind was working. The following are examples reflective of the subjective nature of the judgement (the statements copied from the judgement are categorized; my comments are in italics below each category).

1. High quality of lawyers as witnesses

[Magistrate] was severely cross examined; [SSC] was severely cross-examined at length; [private attorney] faced continuous questioning by the accused’s attorney.

The judgement states the three lawyers who gave evidence against the monk faced three different levels of testing. What did the judges expect to achieve by these adjectives on cross examination of the witnesses? Did the court mean that the accused’s side faced only mild/soft cross examination ?

Dileepa Peiris and Upul Kumarapperuma corroborated magistrate’s evidence.

The three lawyers who were directly responsible for the filing of the case are not going to do anything different than corroborating!

1. accused corroborated Magistrate’s evidence

accused’s lawyer and his two witnesses denied accused saying impotent but accused admitted it

accused’s two witnesses lied

accused lied

These statements demonstrate that the monk was honest, but his lawyer made some technical errors. For example, no lawyer will use/call witnesses who will put the accused in trouble.  Unless the court is determined to teach a lesson to the accused, these are so trivial in a case like this. This is not a murder trial.

1. accused said magistrate was a good magistrate

why then magistrate gave bad evidence against him?

When AG’s lawyer asked this tricky question, the monk could not give an answer. But CA used it against the monk. This change of magistrate’s mind was due to the two lawyers who influenced the magistrate to act at the time of the incident. The issue was not a good magistrate became a bad magistrate. The issue should be why the monk’s mind changed at that moment. It was his lost of hope for whom he considered as national heroes and sudden loss of his mind and body control, triggered by the tear drops fell on his hand. See how one incident could be twisted to get the outcome one wants!

1. address was not in the form of plea

not a peaceful dialogue

addressed the court in high tone being emotionally aroused

accused tried to intimidate magistrate to reverse his order

this is white man’s law. We do not accept this law. Therefore, give bail to these war heroes

The monk did not intervene when the case was being heard. He did not disrupt that case. He spoke after it was over and the remand prisoners were taken out.  The video clip does not justify, what the court was imagining. Again, was this an incident/offence warranting a rigorous jail term of 19 years? Unlike what S.B. Dissanayaka or Ranjan Ramanayaka said the remark about the white man’s law is a political comment not directed at courts or judges.

1. impotent government’s some officers/impotent officers (obscene words)

sit-down, you, impotent state lawyer (to Dileepa Peiris)

this type of treacherous government officers

The monk was accused of uttering these words. Other than the words directed at Dileepa Peiris, there was no insult to an individual but to the government in general. Napunsakaya in Sinhala usage does not mean impotent in its biological English language meaning, but as one who is a puppet without principles in its sociological context. A barren person is not called a napunsakaya in Sinhala. A man acting like a woman and vice versa is called a napunsakaya. Judges should have obtained experts’ advice in this regard.

http://www.colombotoday.com/54927-23/

https://www.youtube.com/watch?v=iwUhCS25hhE

1. JVP connection/protection of Buddhism

AC went on to state that lawyer Kumarapperuma (Ekneligoda’s wife’s lawyer) said that he was not anti-Buddhist and that his links with JVP (he contested 2015 election as a JVP candidate) has nothing to do with the truthfulness of the evidence he gave. He was the only non-state lawyer against the accused. By this statement CA whitewashes Kumarapperuma’s evidence used as another corroboration of magistrate’s evidence.

1. Only lawyers can address the judges in court

CA was clearly erroneous here. Any accused can represent himself in a court of law; Any person can address a court with permission. The accused monk even though he has no direct link with this case was representing the close relatives (their wives) of the remanded war heroes. They went to his temple and begged the monk repetitively to do something for their relatives in remand for months without any charges filed against them. The monk was the only outlet they had to disclose the political nature of the arrests. After all, there are some doubts as to whether Ekneligoda is hiding in Dubai. His disappearance is used for political purposes by a napunsaka government.

Conclusion

Any reasonable person watching the video clip attached cannot help but have doubts about the way the Court of Appeal handled the BBS case, and the harsh punishment given to a public service monk.

The president has referred the appeal for his pardon to AG for advice. An AG’s Dept. who went overboard to fix this monk cannot expect to be impartial in this regard.

Therefore, the lawyers of the monk need to make either a fundamental rights appeal or a fresh appeal to the president to release the monk from prison. There are strong reasons to doubt the legality and reasonableness of the CA decision. (cwije77@outlook.com)