Journalism inadvertently learned

In the year 1992, a subcommittee, perhaps, of the Bar Association of Sri Lanka (BASL), devoted to ‘human rights’ undertook to file a fundamental rights application on behalf of a group of activists, mostly undergraduates and young graduates as well as a couple of ‘old’ activists, 50 and 60 years of age.

There were 14 in total. They had been arrested while having a political discussion in a temple. Another individual who had once been a monk in the same temple was arrested two days later on suspicion of involvement in the political project of the group which the Attorney General of the time submitted to the Panadura High Court amounted to a conspiracy to overthrow the government through means other than those enshrined in the constitution (or words to that effect).

They were initially detained (without a detention order) at the Wadduwa Police Station. Four days later they were separated into three groups and moved to other locations. They were all harassed verbally and physically, both at the Wadduwa Police Station and in the facilities they were moved to later.

Three weeks after the arrests, they were enlarged on bail. The activists, clearly lacking the financial resources necessary for litigation, approached the BASL. They agreed to file FR applications (it was called ‘The Ratawesi Peramuna Case:’ SC Applications No 146/92 to 154/92 and 155/92). Later, the Attorney General would initiate legal action in the Panadura High Court, alleging sedition. Both cases were heard. The FR applications were upheld (on February 17, 1994) and the state ordered to pay compensation. The High Court case was dismissed.

That judgement has been cited in many FR applications since and has been considered important enough to warrant multiple mention in Justice Dr A R B Amarasinghe’s book on fundamental right sin Sri Lanka.

Students of the law and those interested in litigation pertaining to human rights violations might find it interesting reading, but this is about processes and peculiarities in the justice system. It’s about affidavits.

Senior lawyer Santha Jayatilleka was tasked to prepare the affidavits of all the petitioners. That was how I learned the word ‘affidavit’. And that’s how I learned the basics of interviewing people. I was his de-facto research assistant and was asked to talk to and take down the political and personal histories of all the petitioners. In detail.

And so I did. I listened to them relating the life stories of all my fellow-detainees and now fellow-petitioners. I took notes. And I realised that all lives are not just unique but epic in their own ways. Even the lives of the relatively younger petitioners.  Of course the stories of Sunny Dayananda (at the time 50 years old) and M D Daniel (60) were the most colourful of the lot. They had, simply, lived longer.

There were no mobile phones back then and I didn’t have a recorder either. I just wrote down what they said as faithfully as I could. I probably asked a few questions to clarify things that seemed unclear or confusing, but by and large I took their word. It didn’t occur to me that they may have privileged certain things and downplayed or suppressed that which they may have believed to be inconvenient, but looking back I still feel they were all quite honest about what their lives had been.  

The point? Nothing to do with law. Nothing to do with politics. It’s about how we learn certain skills not knowing whether or not they would become useful in a different context.

Almost 10 years later, i.e. in 2001, I was arm-twisted by the Editor of the Sunday Island, Manik De Silva, to interview Lalith Kotelawala. Apparently the advertising people of Upali Newspapers Ltd., wanted the English and Sinhala newspapers to carry a feature on the man, considering the fact that the Ceylinco Group were among the more prominent suppliers of advertising revenue to the company.

‘Lalith Kotelawala bears his heart,’ is the title that Manik gave to the piece I wrote. Then he said, ‘maybe you could interview someone from that generation every week.’ And so I interviewed (I forget the order) M S Themis, H I K Fernando, Pundit Amaradeva, Nanda Malini, Victor Ratnayake, Fr Vito Perniola, Dr Wimala De Silva, Swarna Mallawaarachchi, Dr Gunadasa Amarasekera, Dr P R Anthonis, A Y S Gnanam, A N S Kulasinghe, Dr A T Ariyaratne, General Denis Perera and probably a few others.  

At the time I didn’t realise it but now I do know that all that I did was to repeat that ‘affidavit-exercise.’  ‘Tell me your story,’ was what I said essentially. They told their stories. I wrote it all down and then crafted it into a more readable feature for the 'Sunday Island.' Sanath Jayatilleka wrote the affidavits based on what I had jotted down; Manik De Silva crafted my pieces to make them more readable.

Thirty one years ago I was one of 15 people arrested, beaten up, abused and illegally detained. It was a university of sorts, that experience. It was a school for journalism too, come to think of it! 

malindadocs@gmail.com

 

['The Morning Inspection' is the title of a column I wrote for the Daily News from 2009 to 2011, one article a day, Monday through Saturday. This is a new series. Links to previous articles in this new series are given below] 

Other articles in this series: 

Reflections on the young poetic heart

Wordaholic, trynasty and other portmanteaus

The 'Loku Aiya' of all 'Paththara Mallis'

Subverting the indecency of the mind

Character theft and the perennial question 'who am I?'

Innocence

A degree in people

Faces dripping with time

Saji Coomaraswamy and rewards that matter

Revolutionary unburdening

Seeing, unseeing and seeing again

Alex Carey and the (small) matter of legacy

The Edelweiss of Mirissa 

The insomnial dreams of Kapila Kumara Kalinga 

The clothes we wear and the clothes that wear us (down) 

Every mountain, every rock, is sacred 

Manufacturing passivity and obedience 

Precept and practice 

Sanjeew Lonliyes: rawness unplugged, unlimited 

In praise of courage, determination and insanity 

The relative values of life and death 

Feet that walk 

Sarinda's eyes 

Poetry and poets will not be buried 

Sunny Dayananda 

Reunion Peradeniya (1980-1990) 

What makes Oxygen breathable?  

Sorrowing and delighting the world 

The greatest fallacy  

Encounters with Liyanage Amarakeerthi 

Beyond praise and blame 

Letters that cut and heal the heart 

Vanished and vanishing trails 

Blue-blueness 

A forgotten dawn song from Embilipitiya 

The soft rain of neighbourliness  

The Gold Medals of being 

Jaya Sri Ratna Sri 

All those we've loved before 

Reflections on waves and markings 

A chorus of National Anthems 

Saying what and how 

'Say when' 

Respond to insults in line with the Akkosa Sutra 

The loves of our lives 

The right time, the right person 

The silent equivalent of a thousand words 

Crazy cousins are besties for life 

Unities, free and endearing 

Free verse and the return key

"Sorry, Earth!" 

The lost lyrics of Premakeerthi de Alwis 

The revolution is the song 

Consolation prizes in competitions no one ever wins 

The day I won a Pulitzer 

Ko? 

Ella Deloria's silences 

Blackness, whiteness and black-whiteness 

Inscriptions: stubborn and erasable  

Thursday! 

Deveni: a priceless one-word koan 

Enlightening geometries 

Let's meet at 'The Commons' 

It all begins with a dot 

Recovering run-on lines and lost punctuation 

'Wetness' is not the preserve of the Dry Zone 

On sweeping close to one's feet 

Kumkum Fernando installs Sri Lanka in Coachella, California

To be an island like the Roberts... 

Debts that can never be repaid in full

An island which no flood can overwhelm 

Who really wrote 'Mother'? 

A melody faint and yet not beyond hearing 

Heart dances that cannot be choreographed 

Remembering to forget and forgetting to remember 

On loving, always 

Authors are assassinated, readers are immortal 

When you turn 80... 

It is good to be conscious of nudities  

Saturday slides in after Monday and Sunday somersaults into Friday  

There's a one in a million and a one in ten 

Gunadasa Kapuge is calling 

Kumkum Fernando installs Sri Lanka in Coachella, California 

Hemantha Gunawardena's signature 

Pathways missed 

Architectures of the demolished 

The exotic lunacy of parting gifts 

Who the heck do you think I am? 

Those fascinating 'Chitra Katha' 

The Mangala Sabhava 

So how are things in Sri Lanka? 

The most beautiful father 

Palmam qui meruit ferat 

The sweetest three-letter poem 

Buddhangala Kamatahan 

An Irish and Sri Lankan Hello 

Teams, team-thinking, team-spirit and leadership 

The songs we could sing in lifeboats when we are shipwrecked 

Pure-Rathna, a class act 

Jekhan Aruliah set a ball rolling in Jaffna 

Awaiting arrivals unlike any other 

Teachers and students sometimes reverse roles 

Matters of honor and dignity 

Yet another Mother's Day 

A cockroach named 'Don't' 

Colombo, Colombo, Colombo and so forth 

The slowest road to Kumarigama, Ampara 

Sweeping the clutter away 

Some play music, others listen 

Completing unfinished texts 

Mind and hearts, loquacious and taciturn 

I am at Jaga Food, where are you? 

On separating the missing from the disappeared 

Moments without tenses 

And intangible republics will save the day (as they always have) 

The world is made of waves 

'Sentinelity' 

The circuitous logic of Tony Muller 

Rohana Kalyanaratne, an unforgettable 'Loku Aiya' 

Mowgli, the Greatest Archaeologist 

Figures and disfigurement, rocks and roses 

Sujith Rathnayake and incarcerations imposed and embraced 

Some stories are written on the covers themselves 

A poetic enclave in the Republic of Literature 

Landcapes of gone-time and going-time  

The best insurance against the loud and repeated lie 

So what if the best flutes will not go to the best flautists? 

There's dust and words awaiting us at crossroads and crosswords 

The books of disquiet 

A song of terraced paddy fields 

Of ants, bridges and possibilities 

From A through Aardvark to Zyzzyva  

World's End 

Words, their potency, appropriation and abuse 

Street corner stories 

Who did not listen, who's not listening still? 

The book of layering 

If you remember Kobe, visit GOAT Mountain 

The world is made for re-colouring 

The gift and yoke of bastardy 

The 'English Smile' 

No 27, Dickman's Road, Colombo 5 

Visual cartographers and cartography 

Ithaca from a long ago and right now 

Lessons written in invisible ink 

The amazing quality of 'equal-kindness' 

A tea-maker story seldom told 

On academic activism 

The interchangeability of light and darkness 

Back to TRADITIONAL rice 

Sisterhood: moments, just moments 

Chess is my life and perhaps your too

Reflections on ownership and belonging 

The integrity of Nadeesha Rajapaksha 

Signatures in the seasons of love

To Maceo Martinet as he flies over rainbows 

Sirith, like pirith, persist 

Fragrances that will not be bottled  

Colours and textures of living heritage 

Countries of the past, present and future 

A degree in creative excuses

Books launched and not-yet-launched 

The sunrise as viewed from sacred mountains 

The ways of the lotus 

Isaiah 58: 12-16 and the true meaning of grace 

The age of Frederick Algernon Trotteville 

Live and tell the tale as you will 

Between struggle and cooperation 

Of love and other intangibles 

Neruda, Sekara and literary dimensions 

The universe of smallness 

Paul Christopher's heart of many chambers 

Calmness gracefully cascades in the Dumbara Hills 

Serendipitous amber rules the world 

Continents of the heart

  

The allegory of the slow road  

 

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USAID moves to take over the Bar Association

First they offer help and then they enslave

‘First they had the book and we had the land.  Then they said “close your eyes, let us pray”.  When we opened our eyes, we had the book and they had the land.’  -- Bishop Desmond Tutu on the relationship between invader and missionary in the conquest of Africa. 

It all began innocently enough, not too dissimilar to the Europeans who upon ‘discovering’ new lands obtained first the goodwill of native peoples with bead in return for temporary shelter and later spilled their blood and robbed their lands.  The United States Agency for International Development (USAID) was at the beginning full of promises and generosity.  It began when Upul Jayasuriya was the President of the Bar Association of Sri Lanka (BASL).  Money was offered and accepted to refurbish the old auditorium. 

As of now, the agency notorious for its covert operations to destabilize countries it purports to help, is involved in numerous other projects including the development of the District Court Library, improving the BASL Library, BASL system networking project, public forums, trafficking program, ethics issues, BASL research unit and the ICT project. 

Most of these projects are in the ‘in progress’ category with some having little or no progress to show.  Some of them are partly funded by BASL but are conveniently referred to as ‘USAID projects’. 

Interestingly apart from the BASL President, Geoffrey Alagaratnam the rest of the Bar seems to be clueless about projects, duration, budget lines and such.  Such information is known almost exclusively to Prakalathan Thuraisingham (also known as ‘Prabha’), who is the on-the-spot point-man for USAID in BASL offices and activities.  Thuraisingham works closely with Nayomi Wickramaratne who was the previous Administrative Secretary (Acting) of BASL. 

Interestingly, she held that post even as she worked for USAID, obtaining two salaries, a fact that the then Treasurer Upul Deshapriya vehemently objected to.  Whether or not Upul Jayasuriya knew this is unclear.  What is clear is that through her, USAID had access to the personal files, the accounts, system information and details of the management structure, all of which could easily be used to manipulate the BASL for whatever ends.  Whether this happened, we don’t know, but the opportunity was there and indeed was created either knowingly or due to gross neglect and incompetence on the part of whoever was responsible for creating these conditions. 

USAID does pay a rent for the space occupied, but nothing is paid for the use of other BASL resources including employees.    What might have begun in cordial terms had within the space of 18 months transformed into a situation where USAID officials operate as though they own the BASL.  USAID officials are reported to be poking their fingers into administrative operations of the BASL.  Thuraisingham is reported to strutting around as though he is a member of the BASL, even being present that election of Bar Council Members.  The truth is he is neither member nor an employee.  Whether or not he had the blessings of the BASL President and the rest of the BASL membership is not known. 

Most disturbing (for lawyers) is the fact that through the ‘networking project’ funded by USAID the details of all BASL members, court cases against lawyers, projects etc., can be accessed by an outside agency.    Considering the sway of the BASL in the political life of the country (it played a key role in the eviction of Mohan Peiris and the reinstating of Shiranee Bandaranayake as Chief Justice, for example), the benefits for a rogue outfit operating for a country that does not subscribe to the ethics one expects in matters that are described as ‘friendly’, are pretty obvious.  

Information is key.  Documentation, historically, is often a necessary first step that is followed by either purchase or outright capture.  Perhaps the affairs of the BASL are not that dramatic, but a body that purports to be independent of political control (a fact seriously compromised by the election of Upul Jayasuriya, a known UNPer and an immediate beneficiary of the January 8 result) should not only steer clear of political parties but all other bodies, especially agencies that have a history of meddling and indeed subversion. 

It doesn’t look as the membership of the BASL has a clue about what’s happening.   The current President and the Executive Committee, for example, are contemplating a change in the BASL structure which could very well make the ‘USAID takeover’ official for all intents and purposes.

The envisaged restructuring will see the appointment of an Executive Director who will function as the Chief Executive Officer and the Chief Registered Lobbyist. This would severely diminish the discretionary powers of the Secretary, Treasurer and Administrative Secretary.  

The project is the brainchild of USAID which is to provide relevant funds.   

The person appointed to the position will have wide powers which include implementing programs regardless of management changes, developing income generating plans and linking the bar with other professionals and organizations.  In addition he/she will be involved in education, communication, data base and community through policy, reporting and programming. 

He/she will also develop strategic plans and implement the action/operational plan and micro donation strategies, advice on all BASL activities, act as official spokesperson of the bar, represent BASL and supervise day to day operations of the BASL.

Thuraisingham’s name (Surprise! Surprise!) is being tossed around as the possible first ‘Executive Director’.  BASL members would know the nature of the organization’s relationship with the Chief Justice and the Attorney General.  The potential for involvement in unwarranted and dangerous ways in the affairs of justice needs no elaboration. 

The proposal does not mention eligibility criteria, opening the post to people who are not members of BASL and therefore technically to people who have no understanding of the judicial system of the country, its history and traditions, or the role of the BASL. The problem then is not about Thuraisingham.  If not him, then someone else, that’s the logic that can be drawn from the absence of specification.  And if USAID is funding it, there’s no reason to believe that USAID will not have a say in who gets the job. 

The membership needs to ask questions.  Alagaratnam needs to answer questions.  Will he inform the membership of all that has happened, including the role of the USAID, the operations of Thuraisingham, the status of BASL vis-à-vis USAID and what the possible appointment of an USAID-handpick would mean for the BASL? 

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BASL Resolutions and implications

The Bar Association of Sri Lanka (BASL) adopted three resolutions yesterday relating to the impeachment of the Chief Justice.  In essence, the BASL requests that the President re-consider the impeachment, called for ‘the enactment of procedural laws in relation to the removal of judges of the Superior Courts while ensuring a fair trial by adhering to principles of natural justice’ before proceeding if the first request is turned down, and if the CJ is removed without such enactment and fair-trial guarantees to ‘not welcome’ the CJ’s successor. 

The second and third resolutions clearly assume that the first (request) would be turned down.  The BASL implies in the second resolution that there is a constitutional flaw.  Calling for law-change in mid-process could open a legal and constitutional (if not ethical) can of worms.  Constitutions are not cast in stone, which is why there are provisions for amendment.  What stands has stood, for better or worse, for close to three decades without a murmur of concern being raised by the BASL or anyone else.  This raises the question, ‘Was the BASL ignorant of relevant articles in the Constitution all this time?’ There was politics then and there is politics now, this much is clear.  If the rules can’t keep politics out, then they need to be changed.  Not in the mid-process, not least of all for the bad precedent it sets.  

The allusion to ‘natural justice’ is interesting.  Many BASL movers and shakers are also vociferous supporters of a query currently in the Supreme Court regarding the constitutionality of the impeachment process, essentially asking the CJ to offer determination on a case whose outcome may be detrimental to her interests.  That ‘violation of natural justice’ has not warranted BASL comment.  Neither has the BASL thought fit to observe that if current strictures are inadequate, illegal or violate principles of natural justice it follows that a CJ is unimpeachable, a sorry state of affair which rebels against the fundamental principal of equality before the law.  

The third resolution is a threat, unadulterated.  It appears that the BASL, the governing body of lawyers, has erred on at least 3 counts here.

Firstly, Sec 41 (1) of the Judicature Act gives an Attorney-at-Law an unimpaired and unhindered right to appear before any court or tribunal set up for the administration of justice. Resolution 3 takes away this statutory right.  Secondly, If the CJ is impeached it would have been done both constitutionally and legally (never mind the morality of intent) and therefore the BASL has to recognize it.  Thirdly there is a Constitutional requirement for the President to appoint a new CJ and a new CJ would be appointed constitutionally and legally; therefore there is no ground for the BASL to not recognize a new CJ and to prevent lawyers from appearing before him/her.

Now the wording can be interpreted to mean that what the BASL meant was not to welcome her officially, but lawyers are lawyers and interpretation as per convenience is their bread and butter.  One cannot but note that when Dr. Bandaranayake was appointed, she did not have an official function to ‘present herself before the legal professionals’, perhaps fearing a snub of the kind threatened by this resolution.   

Quite apart from all this, we have a situation where the BASL appears not to know the meaning of ‘unanimous’.  The Vice President of the BASL in fact resigned after objecting to the entire process which she claims was undemocratic. Worse, Dr. Bandaranayake’s lawyers, Neelakanthan and Neelakanthan, operating almost like a Public Relations firm as opposed to a company of lawyers, issues a statement ‘on behalf of client’ to tell the public that Dr. Bandaranayake is grateful that the BASL ‘was unanimous’ in supporting her.  A lot of ‘interpretation’ there of course, but more than that a clear indication that client and/or legal representative have no clue about the meaning of the word ‘unanimous’. 

The BASL has every right to engage in politics.  Responsibility and dignity cannot be demanded but only observed in word and deed and indeed breach of the same.  The BASL was political when its members, with or without the blessings of the body, turned the Supreme Court into a kattadiya’s carnival, and unknowingly or unknowingly gravely compromised the dignity of the post of Chief Justice by taking the politicization of the impeachment to a higher level.  How their high minded notions of ‘natural justice’ and ‘impartiality’ are served by appearing before a judge who they cheered and whose ‘nod’ they received, they have the intelligence to deduce.  The CJ is grateful to the lawyers, by admission.  Will ‘gratitude’ not play in deliberations, one can ask.  The person and the post both appear compromised and the BASL can no longer claim innocence in the outcome.   

It is easy to take refuge in the notion that if everything is out of order it’s perfectly alright to be out of order ourselves.  BASL moves, despite all this, appears to be symptomatic of constitutional flaw no less pronounced than other articulations of the same errors.  It calls not for constitutional tweaking, but comprehensive constitution-review with a view to develop a fresh document, a 3rd Republican Constitution.

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