Judicial Decision Making In The Cases Of Bracegirdle & Gunaratnam

By Nagananda Kodituwakku –April 3, 2016

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.

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

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