Gajalakshmi Paramasivam

08 July 2021

 

SUPREME COURT OF SRI LANKA – AT RISK OF BEING TRIED?

 

As per report by The Morning

 

[Secretary General of the Committee on the Human Rights of Parliamentarians of the Inter-Parliamentary Union (IPU), Martin Chungong, has written to the Supreme Court of Sri Lanka requesting for permission for an international observer representing the IPU to follow remotely the hearing on the Fundamental Rights (FR) petition of MP Rishad Bathiudeen.

As of now, the hearing is scheduled to take place on 08 July.

“The Committee would like to seek your leave for an international observer representing the IPU to follow remotely the hearing on the Fundamental Rights petition which will take place before the Supreme Court on 8 July 2021 in the case of Mr. Abdul Rishad Bathiudeen, a member of the Sri Lankan Parliament. I understand that arrangements can be made to follow the proceedings online,” Chungong stated.

Accordingly, the Committee has requested that leave is granted for its observer, Barrister Mark Trowell QC from Australia, to follow the hearing remotely]

 

As lay litigants, some of us contribute to the independence of the Judiciary – through our Truth. Our truth is the basis of our law. This may be different to the written law which needs to apply to all citizens ‘on equal footing’. The two do not often meet. When they do – the independence of the Judiciary is strengthened.

 

Towards this, Lawyers representing us need to  interpret  the  law at the level of sovereignty achievable by their clients. In the case of Mr Rishad Bathiudeen, I wrote as follows two days ago:

 

[Strictly speaking, Mr Rishad Bathiudeen, ought to have represented himself and learnt through experience the gap between the secular law and his belief in his electorate . Then he would have confirmed that he was entitled to self-governance through Muslim law at the community level.]

In the case of a parliamentarian, the law s/he writes on a particular issue – needs to be as per the truth based law of her/his electorate. That truth would naturally connect the mind to the mind that interprets at National level. If the gap is wide and is filled by conscious application, rather than through belief, the balance needs to be maintained at every step.

 

In the above case, Australian Barrister Mark Trowell QC is reported to have been recommended as an independent observer. The above mentioned IPU states about itself:

 

[Although the Committee’s deliberations are confidential, its case decisions—which contain calls for action, expressions of concerns and requests for information—are normally public. ]

At my level of understanding – the IPU is therefore entitled to the decisions by the Supreme Court of Sri Lanka and not its deliberations. The physical presence can empower of weaken the mind of those who are not within their sovereign borders of belief.

The Sydney Morning Herald in its report headed ‘Australian legal observer slams Malaysia's decision to jail Anwar Ibrahim’ states:

 

[Mark Trowell, QC, says the shock decision of the Federal Court on Tuesday to uphold a conviction against Mr Anwar "was unconvincing and lacked a detailed analysis of the facts".

"In reaching these conclusions the court rejected or ignored the evidence that raised serious doubts about the reliability of so-called independence evidence and the credibility of the complainant," he said.

Mr Trowell's comments follow harsh international reaction to the jailing of 67-year-old Mr Anwar, a former deputy prime minister and rising star among Asia's political leaders who has been the target of a decades-long legal vendetta and smear campaign by his political enemies in the ruling United Malays National Organisation (UMNO).

Mr Trowell, a Perth barrister who observed the court for the Geneva-based Inter-Parliamentary Union, LAWASIA and the Law Council of Australia, said it is for Malaysians to judge what the decision says about the country's judicial system.

But he pointed to a statement by the country's lawyers through Malaysia's Bar Council that referred to "glaring anomalies" in the case that fuel the perception that Mr Anwar had been persecuted and not prosecuted.]

 

Mr Trowell has written books about the above trial. That is fine – as an International Observer. But to be entitled to that status, he needs to know that he is not directly or indirectly influencing the Sri Lankan judiciary whose independence is assured through an independent mind.

 

I also wrote ‘Naan Australian’ based on my experience in Australian courts. In chapter 16 – I share my experience at the  Supreme Court of New South Wales – against the University of New South Wales, the State of New South Wales and the Commonwealth of Australia.   – recorded as follows: (Hodgson represented the State of NSW)

 

[Hodgson: Your Honour said dismiss the notice of motion, I think it should be dismiss the proceedings.

Justice Hughes: Well I should have said – I make orders in favour of the notice of motion brought by the applicant to the notice of motion and I strike out the notice of motion pursuant to s 13.4—

Hodgson: Sorry, your Honour again there are – your Honour said strike out the notice of motion.

Justice Hughes: Strike out the further amended statement of claim on 9 May 2006, pursuant to part 13 rule 13.4 Now was there another order you wanted?

(So, Hodgson only had to ask and it shall be given and Hodgson did ask. It was as if he was drafting the orders and Justice Hughes was merely signing them)

Hodgson: Yes, that the proceedings be dismissed pursuant to part 13 rule 13.4

Justice Hughes: I’ve done that, yes.

Hodgson: And I seek an order for costs of the proceeding as well as of the further amended notice of motion and I seek to hand up an offer of compromise which bears the date of 13 February 2006, together with a covering letter to the plaintiff of the same date. The plaintiff has those. I seek an order that the costs be on the indemnity basis from the day on which the offer was made.]

If the above seems to Mr Trowell -  to confirm high standard of practice in Australia, and Mr Trowell has every right to look down upon the Sri Lankan system. Not otherwise. If Mr Trowell seeks to write about the Bathiudeen case, he needs to join us in the Public gallery – outside the process. Otherwise, it is highly likely that the foreigner would be elevated about Sri Lankan.