Salli woman challenges case transfer
[TamilNet, Friday, 29 June 2001, 19:15 GMT]
The Colombo High Court Friday fixed the argument in the transfer application filed by the Commanding Officer of the Sri Lanka Navy detachment in Nilaveli, the first respondent in the Salli Habeas Corpus Application Case, for July 26. Nilaveli is 12 kilometres north of Trincomalee. Mr.Jeyakili was arrested by the Navy while fishing in the sea with two colleagues on 25 February 2000. The Navy released Mr. Jeyakili's colleagues two days later, but denied that it had arrested him. The fisherman is believed killed.
When his wife filed a Habeas Corpus application in the Trincomalee High Court, the SLN's Nilaveli CO sought the transfer of the case to the Colombo High Court on the ground he was not safe in Trincomalee. Human rights activists and Tamil politicians charge that transferring such cases to Colombo is a very effective and common ruse by the Sri Lankan security forces to sabotage the judicial processes against them.
On Friday, Jeyakili's wife filed an objection to the transfer. The Court gave time to the Attorney General to file his objection till July 26. Lawyer K. S Ratnavel appeared for Pushparatha.
The objection filed by Ms Pushparatha Jeyakili, petitioner- respondent in the Salli Habeas Corpus application in the Court of Appeal Friday states:
"The petitioner Heela Liyana Arachchige Don Fred Seneviratna has been cited as the first respondent in my Habeas Corpus application in Trincomalee High Court in his representative capacity as a Superior Officer responsible for the acts done by subordinate officers under him. The respondent -petitioner among his other duties, is the Commanding Officer of the Navy detachment in Nilaveli, the area within which the disappearance of my husband Vairamuthu Jeyakili took place.
"I specially deny the averments in the petition submitted by the first respondent-petitioner that there is reluctance of the members of the Trincomalee Bar to appear on behalf of him and furthermore he has been unable to retain Counsel from Colombo due to the security situation as well as transport difficulties.
"I state that leading lawyers and others from the Trincomalee and have appeared and continue to appear in criminal and other sensitive cases representing the Armed forces and the Police in the courts in Trincomalee.
There are no transport difficulties or security concern for Counsel from Colombo as the normal civilian traffic by means of public transport and private vehicles is taking place unhampered daily. Lawyers from Colombo and outstations frequently appear in Trincomalee."
Referring to the statement made in the transfer application of the respondent-petitioner that he faces serious threat to his life during travelling to and from the Trincomalee Courts from his camp area and according to the intelligence reports of the Sri Lanka Navy that pistol groups of the LTTE are operating close to the Magistrates' Court of Trincomalee, the petitioner-respondent in Habeas Corpus application in her objection states:
"Any security threat faced by the respondent-petitioner is common to all members of the armed forces and the police in active service and is an occupational hazard which cannot be extended to claim exemption from the law of the land taking it's normal course."
"I further state that the High Court of Trincomalee is situated at a distance of only 50 metres from the Naval Headquarters of the Eastern Command (Dockyard) and the Magistrates' Court is situated in the vicinity of the High Court about 200 metres. The whole area is well fortified with Naval and army sentries and checkpoints in addition to the usual police presence in the High Court and Magistrates' Courts. The respondent-petitioner to complain therefore of security threat in this high security area is an insult to the very armed forces service that he is attached to.
The respondent-petitioner is not sued in his personal capacity but has been sued in his official capacity as Commanding Officer and therefore would be entitled to official security of the Sri Lanka Navy.
"The respondent-petitioner's claim that a fair and impartial proceedings cannot be had in the High Court of Trincomalee and Magistrate's Court due to the prevailing conditions is to cast aspersion on those judges and the Courts in Trincomalee in particular and the Administration of Justice in general.
"The respondent-petitioner's claim that it is unsafe for him appear in the High Court and Magistrates' Court is totally unfounded and untenable coming from a high ranking naval officer in that area.
"By way of further objections, I state that respondent-petitioner's application to transfer of the said Habeas Corpus proceedings from the High Court of Trincomalee is a ploy to suppress the course of Justice by compelling the complainant's witnesses to travel long distances and would in the long last be dissuaded from travelling all the way to Colombo or any other region by sheer exhaustion and exasperation. The security concern for such witnesses and complainants travelling to outside areas far outweigh the security concerns of the petitioner-respondent in Trincomalee.
"I also state that the transfer of my Habeas Corpus Application from the High Court of Trincomalee to Colombo would result in a flurry of further applications to your Lordships' Court from the Northeast province in cases filed against service personnel on charges of crimes and serious abuses of the law and violation of human rights. It would be a bad precedent encouraging various elements to violate the law with impunity.
"I also state that the Courts of Law in Trincomalee are functioning without a break for a long time and granting a transfer of cases of this nature would be interpreted as an expression of lack of confidence in the Courts functioning in the northeast province.
"I state the respondent-petitioner and other officers serving under the respondent-petitioner are responsible for the grave crime of causing the disappearance of my husband. There is very strong evidence that my husband was arrested by personnel under the respondent petitioner and I intend to call several witnesses to testify to the facts concerning the arrest and disappearance of my husband. I further state that the transfer of this case will result in serious impediments to this case proceeding in the High Court.
"I am a mother of three young children, the youngest of whom was born a few days after my husband was arrested and it will be near impossibility for me and other witnesses to travel all the way to Colombo for the purposes of my application in the High Court. The witnesses and I are from impoverished circumstances, which has been made more acute by the disappearance of my husband.
"In the circumstances aforementioned I respectfully move that Your Lordships' Court be pleased to refuse the application to transfer the case to Colombo and direct that the Habeas Corpus application No: 325/2000 filed by me be proceeded in the High Court of Trincomalee."
The respondent-petitioner -the Officer in Charge of the Navy Detachment, Nilaveli filed the transfer application in the Court of Appeal under and in terms of 46 of the Judicature Act.
The Court of Appeal then stayed the further proceedings of the Habeas Corpus Application in the High Court of Eastern Province held at Trincomalee until the final determination of the transfer application.
Ms Pushparatha Jeyakili of Ward No: 07, Salli, Sampaltivu has cited six respondents in her Habeas Corpus Application.
The first respondent is the petitioner of the transfer application-Officer in Charge of the Navy Detachment in Nilaveli.
The other respondents are:
The Commander of the Sri Lanka Navy, The Headquarters Inspector of Police, Trincomalee The Inspector General of Police, Colombo, Colombo-01 The Secretary of the Ministry of Defence, Colombo-01 The Attorney General, Colombo
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