Features
Some 1970s encounters in Magistrates Courts in Victoria
Excerpted from A Life In The Law by Nimal Wikramanayake
When I went to the Bar in 1972, I found appearing before the stipendiary magistrates and the justices of the peace extremely difficult because a number of them were bigoted, obstinate, obdurate and racist. Fortunately for me, there were a few judicious ones like Jack Maloney and Alec Vale. There were also a few of them who were kind and generous to me like Kevin O’Connor, Ernie Daniher and Ken Pummeroy. But the justices of the peace were in a class of their own.
They were layman and laywomen. The less I say about them the better. These men and women had no legal training and knew nothing about the law. They usually consisted of the butcher, the baker and the candlestick maker and, believe it or not, they were appointed to hear summary criminal cases.The sad part of it was that in my practice, I was not even paid danger money for appearing before these miscreants.
I remember very early in my career at the Victorian Bar appearing before the justices at the Broadmeadows Magistrates’ Court. It was in the middle of 1973 and I was able to demolish the prosecution case without any difficulty. I submitted to the justices of the peace that my client had no case to answer, as none of the ingredients of the offence had been established against him. I addressed the two wise men, referred to the burden of proof in criminal cases and the fact that the prosecution had to prove its case beyond reasonable doubt. I then cited a judgment of Mr Justice Menhennitt and asked the justices of the peace to apply the principles laid down by His Honour in the case I had just cited and acquit my client.
What happened next was, to say the least, absolutely startling. The presiding justice said: “We set aside the judgment of Mr Justice Menhennitt. However, since there are so many ifs and buts, we will give the accused a bond’
I stood there speechless, but as my client had been given a bond the result was satisfactory. There is a principle of law known as stare decisis under which a judge is bound to follow a decision of a superior court unless he or she can establish that the judgment of the superior court was clearly wrong. In this case, however, the justices were bound to follow the Supreme Court judge’s decision and had no right to question its correctness as they were a lowly, inferior court. Not only did they not follow His Honour’s decision – they set it aside. This is what we had to put up with. This was absolutely scandalous.
Madam de Farge sat daily in one of the Magistrates’ Court, and although she did not have knitting needles, she had a blue rinse in her hair and dispensed justice mercilessly. All of us young barristers dreaded the thought of appearing before her, for our clients were invariably found guilty.
All this was to change when Jim Kennan became Attorney-General early in the 1980s. With one stroke of the pen, he abolished the office of the stipendiary magistrate and removed the right of justices of the peace to sit and hear cases in the Magistrates’ Court. He replaced them with magistrates who were required to be qualified barristers and solicitors who had served an appropriate term of years.
It was a mystery to me as to why this peculiar system of administering justice was permitted to continue for over a hundred years in Victoria. Nearly all of the great lawyers in Victoria, and long before my time, had to serve an apprenticeship in the Magistrates’ Court and they had to endure the magistrates and justices of the peace, but they did nothing to have this dreadful system of administering justice replaced in Victoria. We will never see the likes of an Attorney-General like the late Jim Kennan in Victoria again.
By the middle of 1974 I had been at the Victorian Bar for nearly two years. I was now accustomed to the rough and tumble in the Magistrates’ Court which we young barristers called the “bear pit”.
I had been briefed by my friend Ronny de Kretser to appear for a Mr Chamarrette, a migrant like me, who had come out to Australia in the 1960s. Chamarrette had been a major in the Indian Army and was an extremely prim and proper gentleman, right up to his enormous, curved military moustache.He had been charged with driving over the speed limit of 60 km/h in Canterbury Road, Camberwell. Chamarrette was a ruddy-faced Anglo-Indian gentleman and his face got ruddier and ruddier as he explained the circumstances of his apprehension to me and related his story in my chambers.
He instructed me that he had been driving in an easterly direction along Mont Albert Road and turned right and drove in a southerly direction until he reached Canterbury Road. He then turned left and had driven about 100 metres when he heard a police siren and a police car drew up alongside him. The policeman beckoned him to pull up at the kerb. When he got out of his motor car, he enquired what he had done wrong. The constable informed him that he had been travelling over 60 km/h in a 60 km/h zone.
Chamarrette was livid. He told the constable that he could not have reached the speed of 60 km/h when he turned into Canterbury Road, as he had traveled less than 100 yards when he was apprehended. Anyway, the upshot of it was that I had a brief to appear at the Camberwell Magistrates’ Court for Chamarrette.
I arrived at the Camberwell Magistrates’ Court at 9.30 am and had a further short conference with Chamarrette. We then adjourned into the main court room where Mr Alec Vale, the magistrate, was sitting. A case had been called up and a police constable, Constable Malone, was giving evidence. The late Brian Bourke, the lion of the Criminal Bar, got up to cross-examine the witness. With a few short, sharp, pointed questions, Bourkie destroyed the credibility of the witness and the magistrate acquitted the accused.
Shortly thereafter my case was called up, and my heart sank. Alec Vale could not hear my case and it was sent before the justices of the peace. I went into a little room at the back of the court house where the two justices were sitting. My case was called and I marked my appearance. Lo and behold, the chief prosecution witness was Constable Malone, the same constable who had given evidence in Bourke’s case.
After he gave his evidence, I got up, looked him squarely in the eye and said, “Constable Malone, a short while ago you were cross-examined by Mr Brian Bourke in a case that was being heard before the magistrate, Mr Alec Vale” Constable Malone nodded. I then said, “Isn’t it a fact that Mr Brian Bourke demolished your evidence and the accused was acquitted?”
Constable Malone answered “yes” to this question. The presiding justice then interjected and said, “Mr Wikrama, are you attacking the credibility and the veracity of this witness?” I replied, “Yes”.
The justice of the peace then made a most astonishing statement: “Mr Wikrama, let us tell you here and now that as far as we are concerned, Constable Malone is a fair, just and an honourable man”
I was aghast. I replied, “What!”
The presiding justice then said, “Mr Wikrama, I don’t suppose you want us to hear this case’
I replied, “Certainly not, no way known”
The case was then adjourned for further hearing before the magistrate Alec Vale. I began putting my files in my attach case when the justice of the peace, Ridgeway, looked up at me and very patronisingly said, “Mr Wikrama, it is fairly obvious that you have arrived in this country recently.”
“Yes”. He then said, “Mr Wikrama, let me give you a piece of advice. In this country it does not pay to attack the police”
I was dumbfounded, for I was there for no other reason than to attack the police constable. I quickly collected my wits, opened my attache case and took my brief out, then in a loud stentorian tone said, “The justice of the peace informs me that in this country it does not pay to attack the police,” and wrote these words in large letters on my brief for the justice to seek. I then bowed and went before the magistrate. I was angry. It is one of the functions of a barrister doing criminal work to attack the police witnesses and to destroy their evidence.
When my case was called before the magistrate, Constable Malone again got into the witness box and gave his evidence in chief. I got up to cross-examine him. I called for his notebook and, to my surprise, noted that during the past two weeks he had taken up a position in Canterbury Road, a short distance east of where he had booked Chamarrette. He would arrive there at 5 o’clock and leave at 6.30 every evening. On every day in those two weeks, he had booked one person between 6.15 and 6.30 pm.
Using this useful bit of information, I proceeded to tear holes in Constable Malone’s evidence. I suggested to him that it was in his interest to book a number of speeding motorists every day, for it would enhance his prospects of promotion by showing that he was a diligent police constable. He denied this. I suggested to him that he would look good in the eyes of his superiors if he booked at least one person every day. He denied this.
He agreed with me that Canterbury Road was a busy road and he said that he would book a number of motorists speeding every evening. I then asked him to look at his notebook and tell me how many motorists he had booked every evening in the past two weeks. He grew a lighter shade of pale and remarked, “Only one”
And I responded, “And that was shortly before you returned to the station.” He agreed. After that he was putty in my hands.
Chamarrette then got into the witness box and, to say the least, was extremely impressive. He was a large man with an equally large military moustache. He stated that he had been in charge of a motor transport division to the British Army in a particular area in India during World War II and was more than familiar with speedometers and speed limits. When he concluded his evidence, the magistrate dismissed the charges against him, and I returned to my chambers.
by Dr Gotabhya Ranasinghe
Senior Consultant Cardiologist
National Hospital Sri Lanka
When we sought a meeting with Hon Dr. Ramesh Pathirana, Minister of Health, he graciously cleared his busy schedule to accommodate us. Renowned for his attentive listening and deep understanding, Minister Pathirana is dedicated to advancing the health sector. His openness and transparency exemplify the qualities of an exemplary politician and minister.
Dr. Palitha Mahipala, the current Health Secretary, demonstrates both commendable enthusiasm and unwavering support. This combination of attributes makes him a highly compatible colleague for the esteemed Minister of Health.
Our discussion centered on a project that has been in the works for the past 30 years, one that no other minister had managed to advance.
Minister Pathirana, however, recognized the project’s significance and its potential to revolutionize care for heart patients.
The project involves the construction of a state-of-the-art facility at the premises of the National Hospital Colombo. The project’s location within the premises of the National Hospital underscores its importance and relevance to the healthcare infrastructure of the nation.
This facility will include a cardiology building and a tertiary care center, equipped with the latest technology to handle and treat all types of heart-related conditions and surgeries.
Securing funding was a major milestone for this initiative. Minister Pathirana successfully obtained approval for a $40 billion loan from the Asian Development Bank. With the funding in place, the foundation stone is scheduled to be laid in September this year, and construction will begin in January 2025.
This project guarantees a consistent and uninterrupted supply of stents and related medications for heart patients. As a result, patients will have timely access to essential medical supplies during their treatment and recovery. By securing these critical resources, the project aims to enhance patient outcomes, minimize treatment delays, and maintain the highest standards of cardiac care.
Upon its fruition, this monumental building will serve as a beacon of hope and healing, symbolizing the unwavering dedication to improving patient outcomes and fostering a healthier society.We anticipate a future marked by significant progress and positive outcomes in Sri Lanka’s cardiovascular treatment landscape within the foreseeable timeframe.
by Fr. Emmanuel Fernando, OMI
Jesuit Fr. Aloysius Pieris (affectionately called Fr. Aloy) celebrated his 90th birthday on April 9, 2024 and I, as the editor of our Oblate Journal, THE MISSIONARY OBLATE had gone to press by that time. Immediately I decided to publish an article, appreciating the untiring selfless services he continues to offer for inter-Faith dialogue, the renewal of the Catholic Church, his concern for the poor and the suffering Sri Lankan masses and to me, the present writer.
It was in 1988, when I was appointed Director of the Oblate Scholastics at Ampitiya by the then Oblate Provincial Fr. Anselm Silva, that I came to know Fr. Aloy more closely. Knowing well his expertise in matters spiritual, theological, Indological and pastoral, and with the collaborative spirit of my companion-formators, our Oblate Scholastics were sent to Tulana, the Research and Encounter Centre, Kelaniya, of which he is the Founder-Director, for ‘exposure-programmes’ on matters spiritual, biblical, theological and pastoral. Some of these dimensions according to my view and that of my companion-formators, were not available at the National Seminary, Ampitiya.
Ever since that time, our Oblate formators/ accompaniers at the Oblate Scholasticate, Ampitiya , have continued to send our Oblate Scholastics to Tulana Centre for deepening their insights and convictions regarding matters needed to serve the people in today’s context. Fr. Aloy also had tried very enthusiastically with the Oblate team headed by Frs. Oswald Firth and Clement Waidyasekara to begin a Theologate, directed by the Religious Congregations in Sri Lanka, for the contextual formation/ accompaniment of their members. It should very well be a desired goal of the Leaders / Provincials of the Religious Congregations.
Besides being a formator/accompanier at the Oblate Scholasticate, I was entrusted also with the task of editing and publishing our Oblate journal, ‘The Missionary Oblate’. To maintain the quality of the journal I continue to depend on Fr. Aloy for his thought-provoking and stimulating articles on Biblical Spirituality, Biblical Theology and Ecclesiology. I am very grateful to him for his generous assistance. Of late, his writings on renewal of the Church, initiated by Pope St. John XX111 and continued by Pope Francis through the Synodal path, published in our Oblate journal, enable our readers to focus their attention also on the needed renewal in the Catholic Church in Sri Lanka. Fr. Aloy appreciated very much the Synodal path adopted by the Jesuit Pope Francis for the renewal of the Church, rooted very much on prayerful discernment. In my Religious and presbyteral life, Fr.Aloy continues to be my spiritual animator / guide and ongoing formator / acccompanier.
Fr. Aloysius Pieris, BA Hons (Lond), LPh (SHC, India), STL (PFT, Naples), PhD (SLU/VC), ThD (Tilburg), D.Ltt (KU), has been one of the eminent Asian theologians well recognized internationally and one who has lectured and held visiting chairs in many universities both in the West and in the East. Many members of Religious Congregations from Asian countries have benefited from his lectures and guidance in the East Asian Pastoral Institute (EAPI) in Manila, Philippines. He had been a Theologian consulted by the Federation of Asian Bishops’ Conferences for many years. During his professorship at the Gregorian University in Rome, he was called to be a member of a special group of advisers on other religions consulted by Pope Paul VI.
Fr. Aloy is the author of more than 30 books and well over 500 Research Papers. Some of his books and articles have been translated and published in several countries. Among those books, one can find the following: 1) The Genesis of an Asian Theology of Liberation (An Autobiographical Excursus on the Art of Theologising in Asia, 2) An Asian Theology of Liberation, 3) Providential Timeliness of Vatican 11 (a long-overdue halt to a scandalous millennium, 4) Give Vatican 11 a chance, 5) Leadership in the Church, 6) Relishing our faith in working for justice (Themes for study and discussion), 7) A Message meant mainly, not exclusively for Jesuits (Background information necessary for helping Francis renew the Church), 8) Lent in Lanka (Reflections and Resolutions, 9) Love meets wisdom (A Christian Experience of Buddhism, 10) Fire and Water 11) God’s Reign for God’s poor, 12) Our Unhiddden Agenda (How we Jesuits work, pray and form our men). He is also the Editor of two journals, Vagdevi, Journal of Religious Reflection and Dialogue, New Series.
Fr. Aloy has a BA in Pali and Sanskrit from the University of London and a Ph.D in Buddhist Philosophy from the University of Sri Lankan, Vidyodaya Campus. On Nov. 23, 2019, he was awarded the prestigious honorary Doctorate of Literature (D.Litt) by the Chancellor of the University of Kelaniya, the Most Venerable Welamitiyawe Dharmakirthi Sri Kusala Dhamma Thera.
Fr. Aloy continues to be a promoter of Gospel values and virtues. Justice as a constitutive dimension of love and social concern for the downtrodden masses are very much noted in his life and work. He had very much appreciated the commitment of the late Fr. Joseph (Joe) Fernando, the National Director of the Social and Economic Centre (SEDEC) for the poor.
In Sri Lanka, a few religious Congregations – the Good Shepherd Sisters, the Christian Brothers, the Marist Brothers and the Oblates – have invited him to animate their members especially during their Provincial Congresses, Chapters and International Conferences. The mainline Christian Churches also have sought his advice and followed his seminars. I, for one, regret very much, that the Sri Lankan authorities of the Catholic Church –today’s Hierarchy—- have not sought Fr.
Aloy’s expertise for the renewal of the Catholic Church in Sri Lanka and thus have not benefited from the immense store of wisdom and insight that he can offer to our local Church while the Sri Lankan bishops who governed the Catholic church in the immediate aftermath of the Second Vatican Council (Edmund Fernando OMI, Anthony de Saram, Leo Nanayakkara OSB, Frank Marcus Fernando, Paul Perera,) visited him and consulted him on many matters. Among the Tamil Bishops, Bishop Rayappu Joseph was keeping close contact with him and Bishop J. Deogupillai hosted him and his team visiting him after the horrible Black July massacre of Tamils.
Sri Lanka-Singapore Free Trade Agreement
By Gomi Senadhira
senadhiragomi@gmail.com
“You might tell fairy tales, but the progress of a country cannot be achieved through such narratives. A country cannot be developed by making false promises. The country moved backward because of the electoral promises made by political parties throughout time. We have witnessed that the ultimate result of this is the country becoming bankrupt. Unfortunately, many segments of the population have not come to realize this yet.” – President Ranil Wickremesinghe, 2024 Budget speech
Any Sri Lankan would agree with the above words of President Wickremesinghe on the false promises our politicians and officials make and the fairy tales they narrate which bankrupted this country. So, to understand this, let’s look at one such fairy tale with lots of false promises; Ranil Wickremesinghe’s greatest achievement in the area of international trade and investment promotion during the Yahapalana period, Sri Lanka-Singapore Free Trade Agreement (SLSFTA).
It is appropriate and timely to do it now as Finance Minister Wickremesinghe has just presented to parliament a bill on the National Policy on Economic Transformation which includes the establishment of an Office for International Trade and the Sri Lanka Institute of Economics and International Trade.
Was SLSFTA a “Cleverly negotiated Free Trade Agreement” as stated by the (former) Minister of Development Strategies and International Trade Malik Samarawickrama during the Parliamentary Debate on the SLSFTA in July 2018, or a colossal blunder covered up with lies, false promises, and fairy tales? After SLSFTA was signed there were a number of fairy tales published on this agreement by the Ministry of Development Strategies and International, Institute of Policy Studies, and others.
However, for this article, I would like to limit my comments to the speech by Minister Samarawickrama during the Parliamentary Debate, and the two most important areas in the agreement which were covered up with lies, fairy tales, and false promises, namely: revenue loss for Sri Lanka and Investment from Singapore. On the other important area, “Waste products dumping” I do not want to comment here as I have written extensively on the issue.
1. The revenue loss
During the Parliamentary Debate in July 2018, Minister Samarawickrama stated “…. let me reiterate that this FTA with Singapore has been very cleverly negotiated by us…. The liberalisation programme under this FTA has been carefully designed to have the least impact on domestic industry and revenue collection. We have included all revenue sensitive items in the negative list of items which will not be subject to removal of tariff. Therefore, 97.8% revenue from Customs duty is protected. Our tariff liberalisation will take place over a period of 12-15 years! In fact, the revenue earned through tariffs on goods imported from Singapore last year was Rs. 35 billion.
The revenue loss for over the next 15 years due to the FTA is only Rs. 733 million– which when annualised, on average, is just Rs. 51 million. That is just 0.14% per year! So anyone who claims the Singapore FTA causes revenue loss to the Government cannot do basic arithmetic! Mr. Speaker, in conclusion, I call on my fellow members of this House – don’t mislead the public with baseless criticism that is not grounded in facts. Don’t look at petty politics and use these issues for your own political survival.”
I was surprised to read the minister’s speech because an article published in January 2018 in “The Straits Times“, based on information released by the Singaporean Negotiators stated, “…. With the FTA, tariff savings for Singapore exports are estimated to hit $10 million annually“.
As the annual tariff savings (that is the revenue loss for Sri Lanka) calculated by the Singaporean Negotiators, Singaporean $ 10 million (Sri Lankan rupees 1,200 million in 2018) was way above the rupees’ 733 million revenue loss for 15 years estimated by the Sri Lankan negotiators, it was clear to any observer that one of the parties to the agreement had not done the basic arithmetic!
Six years later, according to a report published by “The Morning” newspaper, speaking at the Committee on Public Finance (COPF) on 7th May 2024, Mr Samarawickrama’s chief trade negotiator K.J. Weerasinghehad had admitted “…. that forecasted revenue loss for the Government of Sri Lanka through the Singapore FTA is Rs. 450 million in 2023 and Rs. 1.3 billion in 2024.”
If these numbers are correct, as tariff liberalisation under the SLSFTA has just started, we will pass Rs 2 billion very soon. Then, the question is how Sri Lanka’s trade negotiators made such a colossal blunder. Didn’t they do their basic arithmetic? If they didn’t know how to do basic arithmetic they should have at least done their basic readings. For example, the headline of the article published in The Straits Times in January 2018 was “Singapore, Sri Lanka sign FTA, annual savings of $10m expected”.
Anyway, as Sri Lanka’s chief negotiator reiterated at the COPF meeting that “…. since 99% of the tariffs in Singapore have zero rates of duty, Sri Lanka has agreed on 80% tariff liberalisation over a period of 15 years while expecting Singapore investments to address the imbalance in trade,” let’s turn towards investment.
Investment from Singapore
In July 2018, speaking during the Parliamentary Debate on the FTA this is what Minister Malik Samarawickrama stated on investment from Singapore, “Already, thanks to this FTA, in just the past two-and-a-half months since the agreement came into effect we have received a proposal from Singapore for investment amounting to $ 14.8 billion in an oil refinery for export of petroleum products. In addition, we have proposals for a steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million), sugar refinery ($ 200 million). This adds up to more than $ 16.05 billion in the pipeline on these projects alone.
And all of these projects will create thousands of more jobs for our people. In principle approval has already been granted by the BOI and the investors are awaiting the release of land the environmental approvals to commence the project.
I request the Opposition and those with vested interests to change their narrow-minded thinking and join us to develop our country. We must always look at what is best for the whole community, not just the few who may oppose. We owe it to our people to courageously take decisions that will change their lives for the better.”
According to the media report I quoted earlier, speaking at the Committee on Public Finance (COPF) Chief Negotiator Weerasinghe has admitted that Sri Lanka was not happy with overall Singapore investments that have come in the past few years in return for the trade liberalisation under the Singapore-Sri Lanka Free Trade Agreement. He has added that between 2021 and 2023 the total investment from Singapore had been around $162 million!
What happened to those projects worth $16 billion negotiated, thanks to the SLSFTA, in just the two-and-a-half months after the agreement came into effect and approved by the BOI? I do not know about the steel manufacturing plant for exports ($ 1 billion investment), flour milling plant ($ 50 million) and sugar refinery ($ 200 million).
However, story of the multibillion-dollar investment in the Petroleum Refinery unfolded in a manner that would qualify it as the best fairy tale with false promises presented by our politicians and the officials, prior to 2019 elections.
Though many Sri Lankans got to know, through the media which repeatedly highlighted a plethora of issues surrounding the project and the questionable credentials of the Singaporean investor, the construction work on the Mirrijiwela Oil Refinery along with the cement factory began on the24th of March 2019 with a bang and Minister Ranil Wickremesinghe and his ministers along with the foreign and local dignitaries laid the foundation stones.
That was few months before the 2019 Presidential elections. Inaugurating the construction work Prime Minister Ranil Wickremesinghe said the projects will create thousands of job opportunities in the area and surrounding districts.
The oil refinery, which was to be built over 200 acres of land, with the capacity to refine 200,000 barrels of crude oil per day, was to generate US$7 billion of exports and create 1,500 direct and 3,000 indirect jobs. The construction of the refinery was to be completed in 44 months. Four years later, in August 2023 the Cabinet of Ministers approved the proposal presented by President Ranil Wickremesinghe to cancel the agreement with the investors of the refinery as the project has not been implemented! Can they explain to the country how much money was wasted to produce that fairy tale?
It is obvious that the President, ministers, and officials had made huge blunders and had deliberately misled the public and the parliament on the revenue loss and potential investment from SLSFTA with fairy tales and false promises.
As the president himself said, a country cannot be developed by making false promises or with fairy tales and these false promises and fairy tales had bankrupted the country. “Unfortunately, many segments of the population have not come to realize this yet”.
(The writer, a specialist and an activist on trade and development issues . )
US sports envoys to Lanka to champion youth development
Rahuman questions sudden cancellation of leave of CEB employees
