The letter from the Mahason Balakaya threatening lawyers who appear for terrorists raises many questions which go far beyond the matter of the protection of the individual lawyers who have received such threatening letters. Why is it necessary to deprive a terrorist, alleged or real, representation by lawyers at legal proceedings? An inquiry into that question could take us to many of the complex problems involved in contemporary Sri Lanka.
The threat is made to those lawyers who appear in criminal proceedings. All criminal proceedings are against criminals alleged or real. Some cases may be about thieves and robbers, about murderers or rapists, about frauds and corrupt persons charged under the Bribery and Corruption Ordinance, and it also involves those state officers who may be charged for crimes such as torture, extrajudicial killings, bribery and the like. Thus, a criminal proceeding that is not related to an allegation of a crime cannot exist.
Criminal proceedings involve lawyers on the side of the prosecution and on the side of the defense. The main contesting lawyers belong to these two groups while a lawyer for an aggrieved party may also represent the interests of the aggrieved party and his family.
The duty of the defence lawyer is to defend the criminal. The defense lawyer does so by presenting the version of the accused about the crime he or she is alleged to have committed. Thus, a judge can come to the conclusion of the guilt or otherwise of the accused in a just and fair manner only if the accused version is presented with competence and ability.
From all these above stated premises many conclusions follow which are very relevant to the understanding of the intentions of those who have caused the publication of the death threat letter of Mahason Balakaya. First of all such threats imply that terrorism is not a crime but something worse than that. However, the law does not know anything worse than a crime. Therefore, to consider terrorism as something worse than a crime can only happen outside the framework of law. In that case an alleged terrorist need not to be brought to court at all. The simple reason is that courts are supposed to consider everything according to law and they are called courts of law.
Now can a court of law have any other proceedings than those proceedings permitted by law? The obvious answer, of course, is no. If a court of law is expected to carry out any proceedings outside the law it is no longer a court of law. Thus, it would not make any sense if a person is brought to a Magistrate’s Court or a High Court and the court is expected to act outside the law on that particular matter. Such an expectation is implied in this letter by Mahason Balakaya. It expects the courts to be not courts of law but something else. Though any reasonable person would consider this as devoid of meaning those whose hands are behind Mahason Balakaya do not think that way. They want a court verdict to justify a punishment even if it means that the court should act outside the law to do that.
The expectation of courts acting outside the law is not an original idea. There have been many instances of mock courts installed by various dictatorships and authoritarian rulers to bring alleged enemies of the state before a so-called court and give an appearance of legitimacy while, in fact, there is no real legitimacy in such staged trials. As glaring examples we may cite King Henry VIIIs trial of Thomas Moore and many such trials, and the trials under Russias Joseph Stalin and Adolf Hitler of Germany. It is the underlying reasoning in that sort of trial and the expectations of this type of trials which are behind the letter of the Mahason Balakaya that is the same.
As pointed out above a fair trial requires the representation of lawyers for the prosecution and for the defense. When this Balakaya makes death threats to lawyers who appear for terrorists, this implies that the expectations of those who wrote this letter is to have trials where only the prosecution lawyers can appear. The prosecution will make its case naturally to convict the person and if this version is unchallenged the judge is expected to make the verdict purely on what the prosecuting lawyers have said. Once again in such instances no trial is involved and it will only be a propaganda exercise where the prosecutors will publicise their accusation against the person. In such instances there is no role for the judge. Thus, what is implied in the letter of Mahason Balakaya is a propaganda exercise by the prosecutors and the judge, just giving the appearance of agreeing with the prosecution although in fact, the judge has no role in the matter at all. In this manner the role of the judge is denigrated and the judge is reduced to a comic figure.
What is further implied in the vision of justice contained in the Balakayas letter is that the version of the accused should not be presented at all. This of course has a big advantage. If the allegation is untrue, as it has turned out to be in many trials, the public has no way to know the truth. Thus, any person can be brought to a trial and punished whether the allegations are true or not. All that would be needed is to say that someone is a terrorist or that someone is even indirectly linked to terrorists. With that a verdict can be obtained to punish such a person. For the public this means that they should believe in the propaganda and take whatever is said by way of propaganda as the truth.
Now all these considerations bring us to the issue as to what are lawyers, what are judges and what is the public. Under the context envisaged by the Balakaya the lawyers are nothing. If any lawyer tries to act as a lawyer in relation to persons who are alleged to be terrorists the lawyers deserves death. Death as we know is the ultimate punishment. Thus the lawyer now faces the ultimate punishment if he or she still wants to be working within the framework of professional obligations which have been undertaken when the oath of a lawyer was made.
Now let us see what is the expectation regarding judges? It is the judges duty to ensure that an accused facing a criminal proceeding has proper legal representation. The Balakaya thinks that there should be no legal representation. A judge who insists on providing a proper legal defense to an alleged terrorist would therefore be going against the expectation of the Balakaya. Such a judge tries to do what the Balakaya tries to prevent. Therefore such a judge would also fall under the classification of traitor within the vision of the Balakaya. Naturally the conclusion would be that such a judge would also deserve death.
Now if look into the implications to the public any member of the public who is not happy with the prosecution version given against an alleged terrorist, and wants to know the version of the accused, that member of the public would also be committing a grave offense in the eyes of the Balakaya. The public therefore should believe whatever the propaganda says about alleged terrorists and anyone who wants anything more than what is being told also deserves the punishment meted out to traitors, death. Thus, inquisitiveness on the part of the public to find out the truth would be tantamount to a breach of a rule which carries the punishment of death. The implication of this to the media and the right of information is that all these are rights which carry the danger of death if exercised.
This vision of the Balakaya can be expressed through two experiences relating to the case of a well known LTTE leader at one time called, Kuttimani. Kuttimani was tried on various counts relating to terrorists acts before the High Court of Colombo. One of the most revered judges, Tudor De Alwis, presided over this trial. Kuttimani was given all the rights that any other accused would have in criminal proceedings in a court in Sri Lanka. At the end the court found Kuttimani guilty. Before pronouncing the death sentence Tudor De Alwis got up from his chair and addressed Kuttimani, saying that, I do not think of you as a common criminal who would commit a crime for private reasons. I would be a happy person if I were to hear that the president wanted to grant you a presidential pardon from the death sentence. Then he sat down and pronounced the death sentence. Kuttimani made the request that in the event the death sentence is carried out it was his wish that his corneas be donated to someone so that that person may see Eelam. Obviously Tudor De Alwis did not believe in the ideological premises of Kuttimani. However, this great judge was able to convince Kutimuni, as well as the public, that he received a fair trial.
Sometime later a different type of trial took place. That was inside the Welikade prison. While riots were taking place in July 1983 there was a well planned massacre of many persons awaiting trials or serving sentences for crimes relating to terrorism. A group, well armed attacked the unarmed prisoners and hacked them to death. Among them was also Kuttimani. It is also reported that the murderers removed his eyes.
The trial at the High Court and the trial at the Welikade prison represent two completely different concepts of justice. In the 80s these two different versions existed. Those who condemned the type of barbarity involved in the Welikade massacre could urge that all matters of justice be done through courts and the process of law. However, those who are expressing their vision through Mahason Balakaya want to destroy any possibility of a proper criminal trial for those alleged to be terrorist which can extend to all those are considered enemies of the state. There cannot be a more complete denial of justice than this.
Though the Balakayas letter has been published and therefore the government should have official notice of this letter there is no report of any inquiry into the matter. Does the silence of the government imply consent? These are matters that no one who cares about any decent standards of society or basic norms of rule of law can ignore without inviting greater peril to themselves and society as a whole.
For further information on the death threat letter by Mahason Balakaya please refer to our earlier statements: http://www.ahrchk.net/statements/mainfile.php/2008statements/1735/, http://www.ahrchk.net/statements/mainfile.php/2008statements/1738/, http://www.ahrchk.net/statements/mainfile.php/2008statements/1745/, http://www.ahrchk.net/statements/mainfile.php/2008statements/1747/ and http://www.ahrchk.net/statements/mainfile.php/2008statements/1748/
