Did Abraham Sumanthiran lure Alponso Ranjan to his Orumitthanadu den? – part 3.
Posted on January 26th, 2021

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

How did the 2 court of appeal judges and the 2 supreme court judges who refused Ven. G’s permission to appeal, miss this video clip?

Six lawyers and a monk: importance of impotence
Posted on January 22nd, 2019 – Lankaweb

Part II-continuation

It is strange why the monk’s lawyers did not present the video clip above as evidence.  It is also strange why the 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 their evidence, 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 apologize. On the pending case against Ranjan Ramanayaka for condemning the court system as corrupt, his purpose in doing that is fuzzy. 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 with 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 he wanted to report the monk’s behavior 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 could use 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!

*2. accused corroborated Magistrate’s evidence

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

b. accused’s two witnesses lied;

c. 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.

*3. accused said magistrate was a good magistrate, if so, why would magistrate gave bad evidence against the accused?

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 loss of hope of the release of accused soldiers, whom he considered as national heroes. His sudden loss of mind and body control was triggered by the tear drops of re-remanded soldiers fell on his hand. See how one incident could be twisted to get the outcome one wants!

*4. address was not in the form of plea-

a. not a peaceful dialogue;

b. addressed the court in high tone being emotionally aroused;

c. 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.

(Note that the court also accepts emotional element coming within the exception of grave and sudden provocation in criminal law).

*5. 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.

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

*6. JVP connection/protection of Buddhism

CA 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.

*7. 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 marched 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/wijeychandra@gmail.com)

Next: Part 4 -The Lore of the Law and other memories

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