Sri Lanka: How some lawyers trivialise legal proceedings

Asia Human Rights
July 12, 2017
Reproduced with Permission
Asian Human Rights Commission

"Fr. Nandana Manatunga tortured the victim…" claims President's Counsel, Mr. Nalin Ladduwahetty in his defence of a police constable in a torture case.

The case of torture of Mr. Daundalage Pushpakumara came up today 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.