A heavy security presence in the courtroom as Gotabaya Rajapaksa’s ‘D.A. Rajapaksa trial’ kicked off at the Special High Court this week, caused serious concern for State attorneys and witnesses appearing in the case, but lawyers recalled the tactic has been used before very successfully by the former Defence Secretary, when he was still holding office.
The Colombo Permanent High Court at Bar is to make an order this week regarding an application made by Deputy Solicitor General Dileepa Peeris pertaining to private and STF security personnel, (not attached to the court security) remaining within and outside of the Court premises.
On Friday, the three judge bench of the Special Court had to warn a witness for the prosecution, (Geological Survey and Mines Bureau Chairman W.M.A.S. Iddawela), to behave himself in Court, after the state witness stood up to shake the hand of the former Defense Secretary when the trial began last Tuesday (22).
DSG Peeris told Court that the witness had been summoned for the purpose of recording evidence and not to engage in cordial discussions with the accused to show respect.
After three years of investigations and mounting accusations about delayed justice in corruption cases, former Defence Secretary, Gotabaya Rajapaksa, arguably the most powerful member of the previous administration, faces trial in the Special High Court on charges of misappropriating tens of millions in public funds while his brother was President, to build a memorial for their parents in the Hambantota district.
The former Secretary of Defense and six others were indicted on charges of misappropriation of State funds amounting to approximately Rs. 40 million through the Sri Lanka Land Reclamation and Development Corporation (LLRDC).
Three days into the trial, DSG Peeris brought it to the attention of the bench that there was a heavy military presence in the courthouse; with private security personnel even stationed around the dock, which created a fear psychosis, intimidating the witnesses.
The courtroom which is of modest size on a Court day is also filled with an exceptionally large number of lawyers appearing for the accused, other Court officials, police, Media and visitors.
He also informed court that three Defender vehicles had been stationed outside the court with a military presence.
Addressing the bench the DSG informed that he had come to Court for the case over the last eight days and had been patiently observing the situation, but the condition never got better. He said he had decided to highlight the matter because if it continued it would impact Court proceedings. He told court that it was only fair that the witnesses are provided with safe and secure atmosphere to testify freely.
“Any minor gesture made by private security personnel can threaten a witness,” DSG informed the court.
Peeris further stated that the courtroom has only one entrance and military or any other security personnel stationed in and around this entrance makes a significant negative impact on the witnesses that come passing that heavy security using the same entrance. He therefore suggested that a different entrance may be provided for the witnesses to use.
This is not the first time that such a spectacle has been played up when the former defense secretary was in a courthouse. During his trial in a defamation case instituted by him against the former editor of the Sunday Leader, Lasantha Wickrematunga similar tactics were adopted to create a threatening environment within the courthouse.
Lal Wickrematunge, the publisher of The Sunday Leader told Sunday Observer two weeks ago, how the former Defence Secretary came to court after his brother was killed, accompanied by the Navy Commander, Army Commander and the IGP.
“Snipers were positioned around the court house. There were check points every 50 yards. The military top brass arrived in full uniform. The lawyers from Mount Lavinia withdrew on their feet when the case was called up. I was left entirely alone. I moved Court to allow time for us to find lawyers willing to appear for us, as I had a right to representation and asked for another date. It was granted,” Wickrematunge recalled.
After The Sunday Leader retained M.A. Sumanthiran as its counsel in the defamation case, the official website of the Ministry of Defence published an article on July 11, 2009 calling the lawyers appearing for the newspaper and its slain Editor “traitors in black coats” . The article, which referred to attorneys Sumanthiran and Upul Jayasuriya as lawyers who had appeared for “LTTE suspects in the past” drew a sharp rebuke from the Bar Association of Sri Lanka. In its response, the BASL said the matter had also been taken up with former President Mahinda Rajapaksa.
“The Bar Association of Sri Lanka condemns the publication of an article in the Defense website in July 2009 under the heading “Traitors in black coats flocked together?” The article together with the heading create the impression that lawyers who appear against the Defense Secretary are traitors….The Bar Association of Sri Lanka will resist any pressure exerted to prevent persons retaining lawyers and/ or lawyers appearing for clients. The Bar Association of Sri Lanka requests that the article be removed from the website,” the statement said.
In response, the former Defence Secretary, whose private and State provided security personnel are causing consternation in the Special High Court exactly a decade later, signed a letter to the BASL implying that the lawyers indicated in the Defense Ministry article were “cry babies” (see below for full text of letter), and claiming that a “few feint (sic)/chicken-hearted members of the legal profession had reached the association to make representations on their behalf. At a subsequent stage of the defamation case, when the former Defence Secretary was being cross-examined by Sumanthiran, reporters were prohibited from entering the courtroom by senior DIGs and a heavy police presence outside the Court house.
“DIG Anura Senanayake who was present outside the courthouse prevented journalists from entering to cover the court proceedings, which are a matter of public record, and refused to permit photojournalists and cameramen from filming the Defense Secretary’s entrance to the courthouse. Even reporters who offered to leave their cameras and other recording equipment outside were not permitted entry,”- media reported the incident at the time.
However, a different approach was taken when lawyers representing the Defense Secretary were on their feet. In those instances, the media was encouraged to report freely on the events that unfolded at the Mt Lavinia District Court.
The President of the Bar Association of Sri Lanka, U R de Silva speaking to the Sunday Observer said that there is no need to bring any security into the court premises as the court is a safe and secure environment.
“Some of them named as accused of this case may very well have threats to their life, hence the security provided for them is justified, however, this doesn’t mean that they should enter the court premises, there’s adequate security provided by police in the courthouse. So there’s no need for any unnecessary security to be present within the courthouse,” de Silva said. However, pointing out a practical issue he went on to explain that there is no hard and fast rule to keep security out, as they may come inside as spectators but he went on to state that depending on the circumstances the bench is fully empowered to make such necessary orders.
Another issue raised by the DSG was that lawyers who do not make submissions in court on behalf of the accused were commenting to the Media.
DSG Peeris pointed out that he too had come to court with the hope of a fair trial as much as the defense would expect it and therefore it is only justifiable in granting him a fair trial.
The D.A. Rajapaksa museum case is now being taken up on a daily basis and objections by the defense are currently being considered. The State will file its reply to the objections this Friday (31) when the case is scheduled to be heard next.
Gota writes to BASL after “traitors in black coats” article
Bar Association of Sri Lanka,
Hultsdorf Colombo 12
Your letter of 14.7.09 requires a response.
Lawyers have a right and an obligation to appear for any person. More so, a person is always deemed to be innocent unless proved to the contrary. I have sought and received legal advice from your profession which I value greatly.
After 30 years of brutal LTTE terrorism to which some of your illustrious members did succumb at the hands of such terrorists- the desire to protect the interest of your members or profession by addressing the terrorists condemning such operations did not appear surface with such intensity or was not reflected as strenuously as when peace has now dawned. Of course it is your prerogative and maybe the Association was then under a different leadership or there were other known considerations to which I do not propose to dwell presently.
It must be mentioned that it is a known feature in the public domain (which includes members of the defense and security establishment) that during the 30 year war there are/were members of your profession who are well known in the public arena to cover causes for and against terrorism with dedication personally and professionally. The public are aware of such categorization and accordingly media unit of the defense outfits too are free to comment, just as you are free to appear for any cause. The public will decide on the appropriate classification of patriotism or terrorism or otherwise, if that is material or relevant.
The media both state and private have often accused and labeled members of your profession (under different administrations) who stood up for the country as “xenophobic”, “racist”, “extremist” and “chauvinistic” but I am told you have never appealed on their behalf . Possibly as a defense you may say such of your members were not ‘cry babies’ or ‘their nannies’ and did not seek your assistance.
I categorically state there is not a semblance of a sentiment in the article referred to where there is any effort to prevent or deprive or truncate lawyers of their right to appear and defend.
The lawyers historically were respected as fearless and doughty fighters for causes they believed in and for those that they were retained professionally to appear; for which they were/are publicly acclaimed. It appears that a few feint/chicken hearted members of your profession have reached you to make representation and accordingly the contents are noted with the expression that it is in the greater good of the country which includes members of your Association and their families that terrorism is not permitted to raise its ugly head after having plagued the country for three decades.
Secretary of Defence.