A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
A Brief Colonial History Of Ceylon(SriLanka)
Sri Lanka: One Island Two Nations
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Thiranjala Weerasinghe sj.- One Island Two Nations
?????????????????????????????????????????????????Friday, July 14, 2017
How some lawyers trivialize legal proceedings
The
case of torture of Mr. Daundalage Pushpakumara came up on the 12th July
2017 at the Court of Appeal in Sri Lanka. The court was considering a
petition filed by Pushpakumara, seeking leave to appeal in his case
bearing number CA: A12/16. Attorney-at-Law, Mr. J. C. Weliamuna appeared
on behalf of the appellant/victim along with Attorney-at-Law, Mr.
Pulasthi Hewamanna. Mr. Nalin Ladduwahetty P.C. appeared for the
respondent police officer.
The case came up before two judges. The submissions made on behalf of
victim/appellant were both on questions of law and facts. A fundamental
question of law that was raised is concerning Section 200 (1) of the
Criminal Procedure Code. The lawyers appearing for the victim/appellant
argued that the trial judge had wrongly applied the law and that it is a
fundamental misdirection that besets the lower court judgment.
Explaining this argument further, Mr. Weliamuna stated that the trial
judge, by the end of the trial, had already come to the conclusion, that
the offence of torture was committed against the victim/appellant and
that the crime has already been proven beyond reasonable doubt.
Mr. Weliamuna argued further that on the basis of this finding by the
trial judge, the application of Section 200 (1) is impossible in the
case. The reason for the argument is that Section 200 (1) is applicable
only when the judge wholly discredits the prosecution case or when the
evidence does not disclose the commission of the offence charged, or any
other offence. As against this, the trial judge had already concluded
that the offence of torture has occurred. The victim/appellant’s lawyers
argued that the application of section 200 (1) therefore in this case
by the trial judge is wrong.
Mr. Weliamuna also argued that the trial judge further erred in law by
applying the provision for reasonable doubt, when applying Section 200
(1). The question bringing up the issue of reasonable doubt arises only
when the trial is completed. In this case, the trial was not over.
Further Mr. Weliamuna argued that there was overwhelming evidence to
identify the accused and therefore the trial judge also erred on facts
in this case.
Despite all these arguments on questions of law and facts in the case,
the lawyer appearing for the respondent made the following arguments:
(i) that since the Attorney General had not appealed against the
acquittal, the victim/appellant is not entitled for an appeal. This
argument was however opposed by the State Counsel representing the AG’s
department who argued that the settled position in law of Sri Lanka is
that the aggrieved party could appeal, subject to obtaining a leave to
appeal from the court, about which this hearing was all about; (ii) that
there is a discrepancy in the medical evidence, provided in the trial
by two medical officers. This argument could also not be substantiated
since the trial judge had already concluded that the act of torture has
been committed upon the victim/appellant; and (iii) that the trial
court’s application of Section 200 (1) in the case is right.
During the hearing, when the lawyer appearing for the victim/appellant
was substantiating his arguments, the lawyer for the respondent came up
with a rather strange argument it was not the police that tortured the
victim/appellant, but Fr. Nandana Manatunga, the caretaker of the
victim/appellant. The lawyer was ignorant of the fact that Fr. Nandana
only came to know the victim/appellant after the incident. During the
trial, a witness mentioned Fr. Nandana's name, while answering questions
concerning where the victim/appellant is being cared for after his
torture at the hands of the police. From this submission, it was clear
to everyone related to this case, and to all who were attending the
hearing that the respondent’s lawyer has neither studied the case, nor
willing to maintain professional discipline in court.
The Asian Human Rights Commission (AHRC) is of the opinion that this
statement against Fr. Nandana, a mere caregiver to the victim/appellant,
post the crime, amounts to professional misconduct by the respondent’s
lawyer. This lawyer also by the way is a Presidents’ Counsel and a
Senior Lawyer in the country.
Professional privileges of lawyers to make statements in court do not
include making false and defamatory statements against third parties who
are not before the court. Fr. Nandana has informed that he felt shocked
by this statement and affirmed that he will consult his lawyers on what
action he could take against this senior lawyer who is unnecessarily
making false accusations against him in the court.
The above details of a hearing that happened today at the Court of
Appeal in Sri Lanka highlights the triviality into which the legal
process have plummeted in Sri Lanka. The incident also brings to light
how careless and malicious some lawyers are in this country.
- AHRC-