SRI LANKA: In Ganeshan Nimalaruban's case the de facto CJ holds that inquiry into a prison death will encourage prisoners to riot

Peries with Gotabhaya

A Statement from the Asian Human Rights Commission
The case of Ganeshan Nimalaruban, a Tamil prisoner whose death in prison evoked local and international expressions of concern last year was taken up on October 14 before the Supreme Court and the de facto Chief Justice, Mohan Peiris, refused to grant leave to proceed in the fundamental rights case. The de facto CJ refused to observe the normal standards and procedures regarding leave to appeal cases on fundamental rights and the matters that the court should look into before making an order. Those standards and procedures are as follows:

1. Whether the application filed by the petitioner reveals violations of one of the fundamental rights as recognised in the Constitution.
2. Whether, on the face of record, there is adequate evidence placed before the court justifying an inquiry into the case.
3. Whether the application complies with procedural requirements such as time limits for filing of applications.

On the basis of these grounds the application on behalf of Ganeshan Nimalaruban complied with the requirements as the allegation by the petitioner was that the death of his son was due to injuries caused by the respondent officers. Even the de facto CJ agreed on the circumstances of the death and there were no other defects about the application.

In all cases the judges are expected to act on the basis of evidence placed before them and not to allow their prejudice and idiosyncrasies to influence the orders they make in these cases. According to published reports the de facto CJ openly flouted this most basic principle. At the very beginning of the case he is reported as saying that this matter has to end and that the lawyers themselves have a responsibility to the country and making such applications against prison officers of wrong doing will encourage more inmates to get involved in prison riots and thus send the wrong message.

As for the responsibility to the country, the lawyer's duty, as well as that of the court is to uphold the law. If the courts fail to do so there is no one else to uphold the law. Not to uphold the law is to allow the country to descend into chaos. It was the duty of the de facto CJ to reflect on the responsibilities cast on him by virtue of his office and not to be a preacher of whatever ideology and loyalties he might have. When a judge fails to respect his own responsibilities what right has he/she to talk about the responsibilities of the lawyers? In fact, the lawyers carried out their responsibility by filing the application on behalf of a prisoner and thereby demonstrating that a lawyer will stand up to defend the rights of anyone however lowly or socially condemned, he or she might be.

The approach that the de facto CJ has adopted will encourage other officers also to act against the law and to cause problems for prisoners, including their death as it happened in this case. When officers know that the court is not willing to look into complaints against them there is nothing to restrain them from abusing their power.

The report also mentioned the de facto CJ as saying that "If children are brought up well, they won't be involved in these types of activities", clearly showing prejudgment and prejudice regarding a case which has not even been heard as yet. Anyone can make similar statements. For example, if the judges are trained well they will not make such statements as the one quoted above. The consequence of all this is to trivialise court proceedings and reduce them to some kind of political game.

The de facto CJ is also reported as saying that the prison authorities needed to use some type of force to quell the riot and rescue prison officers who had been taken hostage. He then reiterated that Mr. Nimalaruban was already a heart patient, and that that is caused his death. At this point, Mr. Peiris, the Counsel for the petitioner, pointed out that there were two causes of death, one of which was blunt force trauma.

Personal knowledge
At this stage of the case the court did not have all the evidence that would be led by both parties and the de facto CJ was not in a position to make his judgement on the facts. The following paragraph from the report in the Colombo Telegraph indicates that his judgement was on the basis of "personal knowledge".

When Counsel for the petitioner pointed out that there was no material before court to prove the victim's connection to the riot, de facto CJ Pieris indicated he had personal knowledge about the incident.

This is the same Mohan Peiris who told the United Nations Committee against Torture that he had personal knowledge that Prageeth Eknaligoda was living in a western country. Later when called upon to testify in court he stated that his knowledge was based on what someone had told him and he could not remember who had said it. He told the court, only God knows where Prageeth Eknaligoda is.

This reference to personal knowledge raises many problems. What does personal knowledge mean? Did he see, hear or have any kind of sensory knowledge of the events that led to the death of Nimalaruban? Or was this knowledge derived from what the respondent officers told him? Or was it derived from any documents that the petitioner was not shown? Whatever be the answer it is damning of the de facto CJ and the Supreme Court itself.

If a judge claims to have personal knowledge about a case he is to hear the only option he has is to disqualify himself from hearing the case. Not to do so is to flout the most basic aspects of expected judicial conduct.
The de facto CJ is reported to have gone on to narrate some of his personal experiences as a state counsel and some narratives about incidents in the USA and those experiences will not be add to his credit. If Mohan Peiris begins to talk about his personal experiences many others would also want to mention many of the experiences they have had with Mohan Peiris. Anyway, what relevance has this nonsense to the serious issue of dealing with the allegation of an extrajudicial killing?

The counsel for the petitioner stated in court that there were more than 20 injuries, including an arm fracture and there was no evidence of these injuries being caused in the process of quelling the riot. The de facto CJ has relied on his imagination or on a deliberately fabricated story to create the impression that he was acting in good faith in dismissing the petition.

Further he is also reported to have stated that the confidential documents that were handed to the court cannot be given to the petitioner as he could circulate them to the world at large. It is a simple axiom in evidence that all matters in an inquiry should take place in open court and that all parties are entitled to see all the evidence that is led before the court. It is the right of the public to know what has been placed before court. Fairness is not a divine attribute of a judge but a rational process and the public has a right to know the process by which a judge has come to his conclusion.

The Asian Human Rights Commission categorically states that the dismissal of the petition on behalf of Ganeshan Nimalaruban is absolutely wrong and is a clear denial of the rights of the petitioner as a parent. It is also a denial of the rights of the citizens as a whole as this mode of conduct of a judicial inquiry sets a precedent which would be detrimental to every future case that may come before a court.

What are the possible courses of action for the petitioner and also the public?
Following the leave granted to the Attorney General in its petition to set aside the judgement of the Court of Appeal relating to the impeachment, the petitioner too has the right to appeal to a larger bench of the Supreme Court seeking clarification of the following issues as important matters of law which are of fundamental public importance:

a.    Can a case relating to fundamental rights be dismissed on the ground that if the relief is granted as prayed for it may encourage others to assert their rights?
b.    Is it a matter of settled law that no prisoner's death in prison custody should be allowed to be challenged in a court of law on the basis that it may encourage other prisoners to protest prison authorities?
c.    Is it settled law that a judge may decide the case on the basis of his personal knowledge?
d.    Is it settled law that documents shown to the court could be withheld from the parties to the case on any ground at all and particularly on the ground that one or the other party may reveal any such information to the public?
e.    Is it now settled law that a judge may rely on his personal prejudices and idiosyncrasies in deciding cases and giving gratuitous advice to the parties in the case?
f.    What should be the remedies available to a petitioner when a judge openly flouts the most elementary aspects of expected judicial conduct?
g.    Is it settled law that filing cases against the government or any of its officers is against the interests of the country?
h.    Have the lawyers an obligation not to file actions on the basis of instructions of their clients who complain of violations of their rights by the government or any of its officers?

All these and a long list of other questions of law can be raised before the court by way of appeal and on the basis of precedents set by the Supreme Court in granting leave to the Attorney General to appeal against the Court of Appeal judgement. The Supreme Court has set a precedent to allow such matters canvassed before it.

The Asian Human Rights Commission appeals to the Bar Association and the general public to pay attention and to make intervention to stop this scandalous situation manifested in this case and which is also developing as the general trend in the Supreme Court.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.