SRI LANKA: A lawyer humiliated at the Bambilipitya Police Station — the case of Mr. D.W.C. Mohotti, Attorney-at-Law

Mr. D.W.C. Mohotti, an Attorney-at-Law of the Supreme Court of Sri Lanka, (Membership Number of the Bar Association M. 859) by way of an affidavit has narrated the harassment that he has suffered while accompanying a client to the Bambilipitya Police Station. This lawyer is a junior of Ranil Samarasuriya, a senior lawyer practicing in Colombo. On the instruction of the senior lawyer one of his clients K.P. Anil Rupasinghe, was taken to the Bambilipitya Police Station by Mr. Mohotti on several occasions. However, the police stated that this person was not wanted and that if needed, they would call him later.

As the client received a notice to go to the police station on 24.10.2008 Mr. Mohotti accompanied him and they arrived at the police station at around 10 am. The lawyer met the Officer-in-Charge of the Crimes Branch and this officer introduced him the Headquarters Inspector (HQI), Upul Seneviratne.

The lawyer states that the HQI became extremely angry with the client, scolded him in filthy language and told him to admit that he had engaged in a robbery regarding some money. According to the lawyer, the HQI did this in a threatening manner. Further the lawyer states that the HQI continued to scold and threaten his client for about 30 minutes in his presence and stated that he would take out a detention order against the client. The HQI also said that he would assault the client and blame the incident on him. During this entire period the client over and over again denied any involvement of any robbery of money, stating that he was an innocent person.

At this stage the lawyer states that, in his presence, the HQI while scolding the client, suddenly got up from his chair and tried to assault the client. At that stage the lawyer intervened and stated that as the client was protesting his innocence the case should be reported to court and that if there was any need to obtain a detention order the HQI could do that. Mr. Mohotti told the HQI that he was willing to make a statement saying that he has handed over the client to the police. He also reminded the HQI that he should do whatever the law required him to do and, if necessary, he himself was willing to make a statement to the police.

When the lawyer said this the HQI became extremely angry and threateningly told the lawyer to get out of his office. In reply the lawyer told the HQI that he was representing his client and therefore it was not possible to leave the office. He again asked the HQI to act according to the law.

At this stage the lawyer states that the HQI began to behave with unbelievable anger. He got up from his chair saying, “Get out of my office.” And, “Lawyers can’t show off to me.” The HQI shouted in a very loud voice and the lawyer states that he couldn’t believe that a senior police officer could behave in such a manner. The HQI further said, “Before hearing filthy words from me get out from here.” The lawyer states that from the manner of the HQI he was afraid that the HQI would assault him and as he thought that there was no point in talking any further, he decided it would be better to make a statement and leave the place. At this stage a police inspector came in, put his hand on the lawyer’s shoulder and threateningly told him to get out. The lawyer immediately left the HQI’s office and the HQI still scolded him saying, “Get the hell out of here gentleman (Mahattaya), before you hear filthy words from me.” The HQI even continued to shout from the veranda of the police station that he would write to the lawyer’s associations to get his tie and the coat removed and that lawyers are useless fellows. The lawyer was able to record this tirade.

The lawyer went on to say that the HQI was shouting that, “This is my place.” The lawyer got the impression that the HQI treated the police station as his private property and not as a public place where people come to have the law enforced.

Mr. Mohotti also states that his lawyer’s identity card was forcibly taken from him by the Police Inspector who took him out of the HQI’s office and that if he saw this inspector again he would be able to identify him.

The lawyer told the police inspector that he wanted to make a statement about this incident but was told that due to the instructions of the HQI this was not permitted. Thereafter the lawyer was asked to sit in the area where the suspected criminals waited. At this time he called his senior and requested his senior to come to the police station immediately. He explained the entire incident to his senior over the telephone.

A little later the same inspector who took the lawyer’s ID card returned it to him and stated that it was not possible to record a statement and asked him to leave the place. Later he learned that his senior lawyer made a telephone call to the DIG Legal of the police, Gamini Dissanayake, and that this officer instructed the inspector mentioned above to return his lawyer’s ID card.

The lawyer further states that if his senior had not contacted the DIG Legal, Gamini Dissanayake, he believed that he would have been detained inside the police station as a common criminal and that there was quite a good possibility, judging from the behaviour of the HQI, that he may even have filed fabricated charges against him.

The behaviour of the HQI was witnessed by many persons, police officers and civilians at the police station and also his own client. Mr. Mohotti stated that it created in him extreme shock and distress and he felt cowed by the situation. This was the first time he had ever faced a situation like that.

Mr. Mohotti said that, accompanied by another lawyer, he went to Police Head Quarters and made a complaint about the incident and that the report bears the number CIB II – 89/60.

Background to the undermining of the legal profession in Sri Lanka:

Lawyers are a very much threatened species in Sri Lanka. The period following the repression of the rebellion of 1971 has seriously threatened the very foundation of the rule of law and consequently the role of the lawyer. The constitutions of 1972 and 1978 fundamentally challenged the separation of power doctrine and its actual practice. The constitutional diminishment of the actual role of the judiciary has also had a tremendously adverse affect on the legal profession. Added to that the ever-enlarging space of the emergency laws, national security laws and anti terrorism laws has squeezed the space available to the practice of an independent legal profession.

What is even more important than the limitations of the legal ethos are the political and social developments within the country in which violence has become a normal way of life. Threats to every aspect of the citizen’s lives increased, the police lost the capacity to enforce the law and as a result a situation of lawlessness spread throughout the country. In the north and the east a prolonged period of internal conflict virtually destroyed all space for normal living within those areas. In the country as a whole corruption spread as never before. All these and other factors have undermined the process of the settlement of disputes through the court system which is what gives the grounds for the existence of the legal profession.

Besides this development the collapse of the institutions of authority has also challenged the very possibility of achieving the aims of the administration of justice within a strictly legal framework. The most frightening aspect of this is the development of the Sri Lankan police as a law unto itself. The police high command has its authority due to two main reasons. The first and foremost is the politicisation of the whole system which deeply undermines command responsibility. Secondly the very use of the police for engaging in acts of violence on behalf the security state has made the issue of discipline almost irrelevant. Added to this is also the perception that many high ranking police officers themselves have learned to adjust to political demands and learned to take advantage of the situation.

In the area of criminal law this has upset the balance between the police and the courts and the police and the lawyers. A committee appointed by the Ministry of Justice to investigate into the delays of adjudication noted that one of the major causes of the delays is the failure of the police to respect the courts and even to report to court. On the other hand in the Magistrate’s Courts where all criminal proceedings begin the police have become a power unto themselves and even develop methods to prescribe to suspects which lawyers to contact. Intense conflict exists between lawyers and the police at all Magistrate’s Courts conspiring to undermine the independent practice of law.

It is in the midst of these developments that even a further threat has developed of direct assaults, threats and even the assassination of lawyers. From the 80s up to now in the south, north and the east many lawyers have been killed, mostly for doing their normal work, like for example, the filing of habeas corpus applications in the late 80s during the period of terror. There have been no real studies initiated by anyone, including the Bar Association into this important attack on the lawyers. In fact, there has not even been an attempt to honour these lawyers, for example, by having their busts at the Bar Association premises where many busts of former lawyers are exhibited. Perhaps for the sake of creating respect for the dignity of the profession it would have contributed much if at least those who have been slain were recognised in a significant way by the Bar Association itself.

Recent threats to lawyers in Sri Lanka are as follows:

• On the morning of September 27 the Bar Council recognised the complaint of a threat to a lawyer at Wattala who had been appearing for the assassinated Sugath Nishanta Fernando. The issue was raised at the Bar Association by Mr. J.C. Weliamuna
• Two grenades were thrown at the house of Mr. Weliamuna on the night of the 27th. Only one exploded which damaged part of his house and the wall of a neighbouring house. Had both grenades exploded there could have been a threat to the entire family of Mr. Weliamuna.
• This brought a considerable protest from the lawyers, civil society organisations and the international community. The Bar Association after a general meeting passed a lengthy resolution. However, even up to now there has been no successful inquiry into the matter and it appears that no serious inquiry was conducted at all. Meanwhile the government media made an attempt to create the impression that the incident may be related to a personal matter despite of Mr. Weliamuna’s consistent statements that he had no personal enemies to suspect.
• By mid October a document was circulated to the registrars of courts and some lawyers threatening any lawyer who might appear in court on behalf of alleged terrorist suspects. This document which became known as the notice from Mahason Balakaya was reminiscent of similar letters circulated in the late 1980s during the period of terror. At the time this letter was circulated one of the prominent cases under anti terrorism laws was the case of the journalist J.S. Tissainayagam.
• Then on October 24th Mr. D.W.C Mohotti, an attorney at law who went to the Bambilipitya Police Station to represent a client complained of humiliating treatment and threats by a Head Quarters Inspector of Police.

All these matters refer to tremendous attacks on the legal profession and its capacity to survive as an independent profession. The problems of the lawyers are not merely a matter of importance to lawyers themselves but also to the judiciary and the country as a whole. A much undermined legal profession is now facing even further threat. How will the Bar Association, the lawyers in general, the judiciary and the political leadership of various political parties, trade unions, intellectuals and others respond to this issue?

Perhaps one dismissive approach may be that the lawyers have cared little about others in the past and therefore the black-coated fraternity’s problems need not be the problems of others. However, whatever be the past record of the legal profession this profession is necessary for the maintenance of the rule of law and the proper administration of justice. Perhaps the discourse on threats to lawyers could even be an occasion at which the profession itself can look into its responsibilities to the rest of the nation. It is to be hoped that the acute crisis faced now would be resolved for the betterment of all including that of the legal profession and also will contribute to dealing with the threats to the independence of the judiciary.

If a lesson is to be learned from elsewhere the experience of the lawyers in Pakistan provide an enormous example of a courageous fight by lawyers to defend themselves, the judiciary and the law itself.