Gunaratnam and the `clean hands’ doctrineApril 15, 2012, 12:35 am
A cursory application of the `clean hands’ doctrine to the case of Premakumara Gunaratnam would suggest that the hands of this dual citizen of Sri Lanka and Australia were anything but clean. The government, through a statement from the Ministry of External Affairs over which Law Professor G.L. Pieris presides, has brought to the notice of the public that Gunaratnam had changed his name three times with the name Wanninayake Mudiyanselage Dakson appearing on his marriage certificate, Rathnayake Mudiyanselage Dayalal used on his passport and Noel Mudalige used in his Australian passport. This seems to suggest that Gunaratnam has long been an underground character who was keen on hiding his identity. The ministry has not, however, enlightened the country of the name that appeared in his birth certificate.
Most people will not buy the claim that Gunaratnam was not abducted by a state agency. If he was in fact abducted, and we hasten to add that this fact has not been conclusively established, who but the state and its intelligence arms would want to do that? As recently as last Sunday, Minister Wimal Weerawansa went on record in this newspaper saying that the rebels were planning to ``cause political chaos’’ in the country and they would do everything possible to undermine the incumbent government and facilitate external intervention in domestic politics. If this is what the government too believes – although there have been times when it has distanced itself from Weerawansa’s more asinine statements and actions – then Gunaratnam would certainly be an object of interest to the security apparatus. The state and its intelligence wings had obviously been long interested in the whereabouts of this elusive personality who is considered the de facto leader of the new party that the JVP rebels were planning to launch on April 9. No wonder then that they stopped his wife and children en route to Australia where they are citizen and interrogated the lady at length before they permitted her eventual departure after she had claimed that she had not lived with her husband since November 2006.
The `clean hands’ doctrine requires that any person going to court for what is called ``equitable relief’’ in lawyer-speak must be ``innocent of wrongdoing or unfair conduct relating to the subject matter of his/her claim.’’ But it is made very clear that ``unrelated corrupt actions and general immoral character’’ is irrelevant to the issue at hand. It can be argued, as it indeed would, that if the intention of the Frontline Socialist Party of Gunaratnam is to unleash insurgencies of the sort that its predecessor JVP did in 1971 and 1988/89, the reason for hiding his identity under various aliases would be of legitimate interest to the state security apparatus. But if it this not the case, and the state has not presented evidence to the contrary, Gunaratnam hiding under different identities is not relevant to the issue of his abduction. Despite her claim that she had long lived apart from her husband, Dr. Somaratna who practices medicine in Australia was certainly not disinterested in Gunaratnam’s fate post-disappearance. This emerged from the various media statements she had made when the incident triggered interest both here and in Australia.
Had Gunaratnam not been an Australian citizen and pressure for his repatriation to that country not been applied by the Canberra government thorough its high commission here, what his fate would have been is an open question. We have all but forgotten that two of his party colleagues who went to Jaffna to do political work have vanished into thin air. The government has been less voluble about Dimuthu Attygalle, Gunaratnam’s party colleague who had also been allegedly white-vanned by state security, than it has been about the former with the official statement from the external affairs ministry merely noting that she had now ``re-appeared.’’ Her version of the disappearance is certainly disquieting as has been Gunaratnam’s. The pressure applied on behalf of this lady was clearly not as intensive as that mounted with regard to Gunaratnam for the reason that she does not enjoy the cushion of foreign citizenship. Obviously the external affairs ministry, which has no role to play in the functions of the state security apparatus, came into the picture about the Gunaratnam affaire on account of the interest in the matter of foreign diplomatic missions accredited to Colombo. It need hardly be said that we are very much under a global microscope at the present time. Also, the instant smelly stuff hit the fan in the immediate aftermath of the recent sessions of the UN Human Rights Council in Geneva.
It is now nearly three years since the war ended and the State of Emergency which had long been a fact of life where this country was concerned, arming the state with extraordinary powers over its citizen, is now no longer in force. Arrested persons cannot be held for longer than 24 hours without production before a magistrate. But in the midst of war laws were long silent and various security agencies and persons directing them have got well used to a culture of impunity. We have in the past urged that it is not possible for one side fighting a brutal terrorist force to do so with its hands tied behind its back while the enemy had free rein to do as it pleased and to hell with the rules of war or civilized conduct. But that phase in our contemporary history is over and we must return to the rule of law in the conduct of the state. Much has been made about the Australian High Commission in Colombo having Gunaratnam’s passport in its custody. He may well have deposited it there for reasons he would have explained to the satisfaction of the mission if such was the case.
Australia is a friendly country and tens of thousands of Lankans have obtained citizenship there. Many of our students are educated in Australia and many more aspire to go there. She has been a generous aid giver, playing a major part in the Colombo Plan. Australia, we are sure, would readily acknowledge the role the Lankan authorities, and the Sri Lanka Navy in particular, is rendering in thwarting attempts by boatloads of illicit immigrants to enter that country and seek asylum there on spurious grounds. It is necessary from the viewpoints of both states that relations are maintained in a state of excellence and that is reflected in the statement issued by the Australian High Commission in Colombo on the Gunaratnam matter. If there are other aspects to be probed, and this appears to be the case, we have no doubt that this can be done outside the glare of the public gaze.