Secretary JSC replies Birnbaum

COLOMBO: The Judicial Service Commission has hit out at remarks made by Michael Birnbaum of the International Commission of Jurists regarding the ‘substitution’ of a Magistrate during the inquest into the Muttur Massacre, charging the latter with being totally misinformed about the circumstances with regard to the matter and the applicable law as to an inquest.

In a hard hitting response Secretary Judicial Service Commission P.W.D.C. Jayathilaka states:

The Chief Justice being the Chairman of the Judicial Service Commission has with the consultation of the Judges of the Supreme Court being members of the Commission requested me to issue this statement with regard to the news item appeared in the “Island” newspaper of March 10, 2007, on page 2 under the heading -

“Muttur massacre of 17 aid workers -

Substitution of Magistrates unlawful - Birnbaum”.

The news item contains what was said by Micheal Birnbaum of the International Commission of Jurists at an “Informal meeting” with media representatives in Colombo on the Friday last.

Birnbaum had stated that the action of the Judicial Service Commission in “substituting” another Magistrate when the inquest into the killing of 17 persons in Muttur was proceeding was “unlawful under Sri Lankan Law”, “without justification” and “improper”.

He has further stated that such an appointment is virtually unprecedented and that “the worse thing was the way it was done might well undermine the confidence of the Tamil minority in the system of justice.”

The Judicial Service Commission wishes to specifically state that Birnbaum has been totally misinformed about the circumstances with regard to the matter and the applicable law as to an Inquest.

Before making such serious allegations of racial bias, unlawful, unjustified and improper action against the constitutionally established authority in this country to preserve and uphold the independence of the judiciary, Birnbaum, who claims as an international jurist should have had the elementary courtesy and the common sense to check on the true circumstances from the judicial Service Commission.

He has failed to do so and has acted in violation of the constitutional safeguards to preserve the independence of the Judicial Service Commission.

In view of the baseless, misleading and highly damaging statements that have been made, this comprehensive statement as to the circumstances in which action was taken by the Commission under the applicable law is being issued.

With the outbreak of fighting in the Muttur area the Judicial Service Commission was informed that the Magistrate, Muttur, and the other Court officials were affected. It was not possible to contact them by telephone.

Being concerned about the safety of the Magistrate and the officials the Chief Justice contacted a high official of the Sri Lanka Red Cross Society who was leading a team of relief workers to the Muttur area and requested him to trace the whereabouts of the Magistrate in particular, if necessary with the assistance of the ICRC.

Pursuant to this request the Magistrate was traced and the Chief Justice spoke to him over the telephone and requested him to return to his family in Colombo, forthwith.

It was decided to take this course of action since the Magistrate having been caught up in the fighting was not in a fit state to continue with his judicial work in that area. In any event the conditions in Muttur were not in any way conductive to hold a Court there at that time.

In the meanwhile the killing of the 17 aid workers was reported by the Police to the Magistrate Trincomalee. On 7th August 2006 the Magistrate, Trincomalee directed that post mortem examinations be done by the Medical Officer and on 8th August 2006, he permitted the burial of the bodies.

Thereafter he had referred the record to the Magistrate, Muttur who had been then staying in Trincomalee. The Magistrate, Muttur had only recorded the statements of the persons who identified the bodies at the time post mortem examination. These persons did not have any information as to the circumstances in which the killings were done.

No decision had been made as required by Section 370 (1) of the Code of Criminal Procedure Act No. 15 of 1979 as to the cause of death.

The delay in recording a decision as to the cause of death and thereby concluding the inquest had been brought to the notice of the Secretary to the Inter Ministerial Committee of Human Rights who is also the Secretary of the Ministry of Justice at a discussion held at the Ministry of Human Rights, by the Ambassadors of France and Australia who expressed concern regarding this matter and offered technical assistance.

The Criminal Investigation Department had also informed the Secretary that the Magistrate, Muttur who was caught up in the fighting would have vital information as to the actual sequence of events in the Muttur area during the relevant time which would be useful for the investigation. These matters were brought to the notice of the Chief Justice by the Secretary.

The Judicial Service Commission considered the matters raised by the Secretary and considering the fact that it had already been decided to appoint the Magistrate Muttur to another station due to the trauma that he had undergone, the Magistrate of Anuradhapura was appointed to complete the inquest.

At that point of time only the persons who identified the bodies at the post mortem examination who were not witnesses to the incident had given evidence.

The Magistrate Anuradhapura, who was appointed for this purpose allowed the applications made by the relatives and the CID to exhume the bodies and detailed postmortem and ballastics examinations were carried out.

The evidence of these examinations have been recorded over a period of time. Interested persons had made applications before the Magistrate to lead evidence of other persons who could shed useful information as to the circumstances in which the deaths occurred.

Although three postponements were granted for this purpose no information was forthcoming.

The Magistrate concluded the Inquest by recording that the deaths were caused by rifle gun shots in the early hours of the morning of the 4th of August 2006. The CID has been directed to carry out further investigations and report matters to the Magistrate’s Court.

Birnbaum, who has made rash allegations of unlawful action on the part of the Judicial Service Commission is totally ignorant of the Sri Lankan law with regard to the ambit of Inquest.

In terms of Section 370 (1) of the Code of Criminal Procedure Act No. 15 of 1979 an Inquest is generally done by an Inquirer who is not a judicial officer but an official appointed by the Ministry of Justice. A Magistrate is also empowered to carry out an Inquest.

The purpose of such Inquest is only to record the opinion of the inquirer with regard to the cause of death, and note the marks and injuries found on the body and the manner in which they appear to have been inflicted.

The Judgement of the Supreme Court in the case of Seneviratne vs Attorney General - reported in 71 NLR page 439, has dealt with the relevant sections and held that “the functions of a Magistrate or an Inquirer holding an inquest of death are of a non-judicial character (at page 447).

It was also held by the Supreme Court that the law in England with regard to a Coroner’s Court is not applicable in Sri Lanka and that “there is no power in an inquirer or Magistrate to pronounce any “verdict”, his duty is only to record a finding of the cause of death; the finding by itself by itself does not automatically initiate any legal proceedings as an “inquisition” of a Coroner’s Court in England.”

Considering the scope of an inquest under our law, at times inquest that are commenced by Inquirers, being administrative officers are concluded by Magistrates and at times Magistrates request Inquirers to conclude inquests commenced by them.

In this instance the original order for burial had been made by the Magistrate, Trincomalee and the subsequent opinion as to the cause of death has been expressed by the Magistrate Anuradhapura after the exhumation of the bodies.

Secretary, Ministry of Justice, has spoken to the Magistrate Muttur who had been a colleague of his in the Attorney General’s Department, in view of the concerns expressed by the two Ambassadors referred to above and the matter brought to his notice by the CID, in his capacity as Secretary to the Inter Ministerial Committee on Human Rights. His intention was not to interfere in a judicial proceeding as erroneously inferred by Birnbaum.

Birnbaum’s reckless allegations of unlawful and unjustified action on the part of the Judicial Service Commission may have resulted form his being misinformed of the facts and from ignorance of Sri Lankan Law.

It is now a common occurrence for persons who come from outside to judge and pontify on the action of lawfully established authorities in this country.

It may be the lot of Sri Lankan authorities to suffer such insolence at hands of ignorant and arrogant persons who lack even the basic courtesy of even checking up on the facts with the relevant authorities.

However, what is reprehensible and inexcusable is his endeavour to insinuate racial bias on the part of the Judicial Service Commission.

He has conjured a racial twist by unnecessarily describing the Magistrate Muttur as being a Tamil and stating very directly that the “worse thing was, the way it was done might well undermine the confidence of the Tamil minority in the system of justice.

The Judicial Service Commission has established courts throughout in the Northern and Eastern Provinces, except in two stations.

Tamil, Muslim and Sinhala Judges and officials function in these courts and there has not been even a hint of racial bias, on the part of the Commission.

It is a fact that over the years external interference has aggravated the “ethnic conflict” in this country. Birnbaum is insidiously endeavouring to open out another dimension to his conflict relating to the Judiciary.

In the circumstances he is firmly warned that if he persists in this line of conduct, action would have to be taken against him as provided by the Constitution and the law to safeguard the independence and dignity of the judicial institutions in this country.

P. W. D. C. Jayathilake, Secretary,Judicial Service Commission