Destroyed public institutions

The AHRC and ALRC have over a number of years emphasised how the destruction of Sri Lanka’s public institutions has been related to the collapse of the rule of law. In this section some aspects of the problem are again taken up through recent writings on the police, the Attorney General’s department and the judiciary. 

An article by retired Senior Deputy Inspector General (DIG) Gamini Gunawardane, “What is wrong with the police?” was published on the Sinhale Hot News website on 7 September 2009; the following is an extract that speaks to the problems of policing attendant to the loss of meaning of legality in Sri Lanka today:

The police department in its existence for the last 142 years has passed through several stages of evolution: 1. A colonial police (1867-1948) 2. A post-colonial police (1948-1972) 3. Political interference stage (1972-1988) 4. Politicization stage (1988-2001) 5. Reduction to a status of a virtual private security service of the party in power (2001-to date). Though specific years are given for convenience, they really overlap, because it is an evolutionary process.

Of course, there is a strong reason among others for the rapid passage in to the latter three stages. It is the damage caused to the police service while it was going through the socio-political trauma owing to the coup d’etat in 1962 and the 3 insurgencies that occurred in this country since 1971.

In fact, after the post-colonial stage we should have evolved ourselves into a ‘people’s police’ as vaguely envisioned by the Mr. Osmund de Silva IGP [Inspector General of Police]. But [because of] the rapid political developments since his time followed by the insurgencies, the police instead became militarized and in the process, many sound policing practices of the post-colonial era fell by the wayside.

Owing to the fifth stage above, even the most junior police constable knows that [the] people are not the primary client of the police, but that his top client really is the politician. Politician’s requirement always takes priority. Though the politician is supposed to be only a representative of the people, the peoples’ requirement came only after his requirement. Sometimes some members of the public with political clout do get their things done when they too approach the police through a government party politician. That is how the parents of the SLITT student were able to stop the police from doing what they intended to do with their abducted son. The parents moved fast through a relative who was a Minister. The people of Angulana had no such luck. The parents of the deceased youth had to be consoled after the event, by an embarrassed President, having being invited to his residence. Naturally, one is embarrassed when one’s domestics misbehave.

The Angulana case to which the former senior DIG refers is indicative of the extent to which abuse of police power in Sri Lanka is associated with corruption. The Angulana police murders of two youths, Dinesh Tharanga Fernando and Danushka Udaya, shook the whole area and led to violent protests. The army and Special Forces had to be sent in to restore peace, while the local officers were transferred out. According to the mother of Tharanga, speaking to the BBC Sinhala service,

That gentleman [the Officer in Charge, OIC, of the police station] can’t stand the sight of young boys. He arrests them and takes them to the police station and assaults them. Parents go to the police station and pay money to get the boys released. He arrests the boys in order to make money. We also went to the police station when we heard about the arrest of our son, and we took money to give him. But we were not shown the boy and we were unable to rescue him.

The father of the boy said, “When we went to the police station we found that all the police officers were heavily drunk.” Jeevan Kumaranathunga, the Angulana parliamentarian, told the BBC that he had received many reports about the drunkenness of police at the Angulana police post and that he had made representations to the relevant authorities about this situation, but because no action had been taken, this unfortunate tragedy occurred.

Drunken police misbehaviour is not exceptional to the Angulana police. It happens everywhere, like torture, extrajudicial killing and bribery. It is the duty of the member of parliament of an area to receive complaints about state officers, including policemen. It is also his or her duty to intervene promptly on behalf of citizens whom the police harass.

However, in the Angulana case there is no indication that the families of the boys rushed to the house of their member of parliament to get his intervention so as to save the lives of their children. In so many other cases also, people do not go to their members of parliament seeking protection when events such as these occur, due to a loss of confidence and alienation of citizens from their supposed representatives.

One reason for this alienation is that around the country members of parliament work hand in glove with the local police. Since people know of these close relationships, there is a general feeling that it is futile to complain to a parliamentarian about police abuses. It is also well known that local politicians intervene to save suspects when they are supporters of their party. The illicit liquor sellers, drug dealers and others who engage in all kinds of seedy businesses get the patronage of the local politicians. The ordinary citizens who come into contact with the police without breaching any law get into serious trouble and find no support from the politicians.

If the member of parliament for Angulana had received information on the drunkenness of the local police, it was his duty not just to make some representations to authorities—knowing well that nothing would come of it—but rather to take all the measures that he is empowered to take as the representative of the people in order to protect their rights. If his initial protests were not heeded, he could have made representations to the higher police authorities, such as the IGP and the National Police Commission. He could have done so in writing. If that also did not work, he could have taken up the matter through his political party, which is in government.

Even if all these methods had failed, he could have made a statement in parliament. He could have called for an inquiry. He could have sought the intervention of the president. And as a member of the parliament he has access to the media and any statement by him on the drunkenness of policemen at a police station should have created sufficient pressure to get some action.

Thus, looking into the causes of the murders of the two young persons from Angulana and the police abuse that is rife across the island requires some examination not only of the police’s own behaviour but also of the responsibility of the member of parliament of the area.

Another agency that should be acting to counter-balance the authority of the police but instead has for years also worked closely with them to the detriment of the system is the Department of Attorney General (AG’s department). One feature of the close relationship between this department and the police has been its complicity in cases of police violence and torture.

To reduce torture, complaints must be investigated. However, it is a long-established practice that investigations are deliberately sabotaged. The main saboteurs are of course the police themselves and the AG’s department in its capacity as prosecutor.

The role of the AG’s department as a co-conspirator in abuses goes back some way. In the late eighties, for instance, emergency laws were used to encourage extrajudicial killings. At least 30,000 persons, mostly from the south, disappeared during this period. The disappearances were caused through the emergency regulations, which were framed in a manner to make such extrajudicial killing possible. Magistrates were deprived of the rights to conduct inquests into all suspicious deaths by giving police officers the right to grant permissions for burials. As a result of this regulation, which shifted the law that all suspicious deaths must be investigated, the bodies of people whom police or related agencies had killed were not brought before a magistrate, and were buried without autopsy. This was a regulation designed to permit mass murder.

There is reason to believe that AG’s department was involved in advising on the draft of these regulations. There is also no evidence at all to indicate that the department in any way opposed them, or pointed to the illegality of arranging for and permitting mass murder. Similarly, when Tamil prisoners were killed inside the Walikada prison in July 1983, officers from the AG’s department participated in the inquest proceedings not in order to prosecute the offenders but so as to hush up what really took place.

A case that became famous in the 1990s illustrates the point further. Richard de Zoysa—a well-known film actor, author and journalist and a popular socialite—was abducted from his house, and several days later his body was found washed up on a beach. It is speculated that after he was arrested and tortured, his body was dumped from a helicopter into the sea in the hope that it would never be recovered.

The news of the killing was one of the most shocking events that influenced politics at the time. Local and international media coverage was extensive and fingers were pointed at the security forces, which were then engaged in wiping out an insurgency in the south in which tens of thousands of people were similarly abducted and killed.
 
Despite enormous pressure, the government of the day persisted in covering up de Zoysa’s murder. On the first anniversary of his death, the Liberal Party—which no longer exists—took up de Zoysa’s case. A whole volume of the Liberal Review was devoted to his assassination.

That volume included a long letter written by the party to the government, analysing the manner in which the inquiry had been sabotaged. The letter blamed the police and the AG’s department for failing to investigate. The party called for a commission to inquire into the murder. The reasons it gave are revealing:

There is a significant possibility of the complicity of elements of the police in this crime and the apparent unwillingness of the Attorney General and his department to act impartially in this case, which prompts us to suggest the appointment of a commission of inquiry.

The letter was written in February 1991. From then until now, nothing has happened to improve confidence in either the police or the AG’s department with regard to independent and impartial inquiries into human rights abuses of this sort. One of the major reasons for this failure remains the complicity of the police and the prosecutors, who work to prevent proper inquiries into serious crimes.

Today, the position of the police is much worse than it was in the late 1990s. Everyone acknowledges this, even high-ranking police officers that have made public statements expressing bewilderment about the situation.

In current times, even a person accused of murder can continue to work as a police officer. Suresh Gunaratne, a police sub-inspector accused in the murder of torture victim Gerald Perera, continues to work as an investigator at the Gampaha Police Station. Many others accused of serious crimes are not even subjected to investigation. One of the known pastimes at many police stations is to intimidate witnesses who make complaints against police officers.

What is more shocking is the way the AG’s department has undermined its duty to help prevent torture. There were some positive developments in the early part of this century when the department filed a large number of torture indictments against police officers. These were made under the then AG, K.C. Kamalasabayson, who was not one of the destroyers of institutions in Sri Lanka but rather a captive to the destruction.

Kamalasabayson held the post from October 1999 to April 2007. Compared to others, he tried to be more politically neutral and to keep some balance even as the ship of state tossed and turned. By the time Kamalasabayson became the AG, the country had already witnessed some of the most colossal human rights abuses in its modern history. It was a difficult time for anyone with some integrity to hold the post. Kamalasabayson did not deal decisively with the threats to his institution. He was unable even to prosecute effectively many cases of disappearances concerning police and military officers, against whom commissions of inquiry were reported to have adequate evidence. As the prosecuting of police and military officers for disappearances is a highly sensitive issue it would perhaps have taken a giant to withstand political pressure and do his job according to law.

Kamalasabayson was not a giant, but he did show that he was aware of the acute problems caused by the collapsed rule of law. Giving the 13th Kanchana Abhayapala Memorial Lecture on 2 December 2003, he spoke of many of these. He highlighted the absence of a witness protection law and program, delays in courts, lack of legal provisions protecting the victims of crime, lack of investment in administration of justice, and even the inadequacy of staff at his department. He was also aware of the crisis over the country’s criminal investigation function, exercised through the police.

His most important decision was to prosecute cases under the Convention against Torture and Other Cruel and Other Inhuman and Punishment Act, No. 22 of 1994. Procedurally, he did this by referring all the complaints of torture received from United Nations agencies or local channels to a Special Inquiry Unit (SIU) of the CID. Within a short time, several SIUs investigated a large number of cases and submitted files to the AG’s department for prosecution of officers. The department held over sixty files on which it had decided that it had adequate evidence to prosecute. In many of these cases, it filed indictments in High Courts.

Most cases are still pending. After Kamalasabayson retired it did not take long for the department to change policy on the referral of complaints through SIUs. His successor, C.R. de Silva, often mentioned that the department would not bow to the pressure of NGOs, meaning that prosecuting cases of torture is somehow something that is a result of pressure that should be resisted. Under him, there ceased to be any high-level inquiries into allegations of torture. Even where evidence emerges by other means, the department now most of the time refers the cases to magistrates to be prosecuted under the Penal Code as simple hurt. Departmental officers have also made reports to UN agencies, including the Committee against Torture—which monitors the convention—stating that there is no serious problem of torture in Sri Lanka.

Even in cases where fundamental errors have been made in the facts and application of the law, the AG’s department has refused to file appeals or revisions, despite requests on behalf of aggrieved victims. The tacit policy today is not to eliminate torture but to protect perpetrators.

As a consequence, policemen who arrest, detain and torture for the purpose of getting money are common throughout the country. The well-publicized case of Sugath Nishantha Fernando of Negambo illustrates how adventures relating to bribery can lead to so many other police crimes.

Nishantha Fernando initially complained about a police inspector who had sold him a lorry of which he claimed to be the owner, while in fact it was a stolen vehicle. His complaints led to the fabrication of charges against him. He had to pay bribes and to promise payment of more in order to get the charges dropped. Finally, when the demands were too much, he complained to the Bribery Commission. The commission, after inquiries, filed charges against a police inspector.

Thereafter, Nishantha and his wife were pressured not to give evidence in the case. When they failed to pay heed, about 20 police officers, including the OIC of the Negambo police station, surrounded their house and assaulted them and their two young children, and took them to the police station. Later, the family filed a fundamental rights application regarding torture of all the four family members, and the Supreme Court granted leave to proceed. The family named 12 police officers as respondents.

Then, some unknown persons visited the family and told the couple to withdraw the fundamental rights application in 24 hours or the whole family would be killed. Nishantha complained to the IGP and all the Sri Lankan authorities, including the Ministry of Disaster Management and Human Rights.

On 21 September 2008, two gunmen shot Nishantha Fernando in front of his young son (see “The price of fighting the state in Sri Lanka” by Julianne Porter, article 2, vol. 8, no. 1, March 2009). No one has yet been arrested and there seems to be no inquiry at all about this murder. The mother and the two children received further death threats and they had to move from house to house over several months for security. The family has remained in hiding.

Hundreds of cases of this sort, arising not from security concerns but from the adventures of policemen abusing their authority to make a profit, can be narrated on the basis of cases that the AHRC and its partners have documented over the last few years. The fundamental rights cases before the Supreme Court alone together tell a tale of enormous cruelty and of abuses of power that neither the police authorities nor the government have made any attempt to stop.

In all discussions relating to development as well as peace in Sri Lanka, radical reform of the police should have a significant place. However, as retired DIG Gunawardane points out, this is not likely to happen any time soon:

Judging by what is going on at present, no government is likely to change this arrangement with regard to the police. In the short term it is advantageous to the party in power to be able to directly manipulate the police. For, this is the direct exercise of civil coercive power. The party in power only realizes the adverse effects of this when they become the opposition. They then dare the party in power to hold elections having implemented the 17th Amendment etc. But when they get back into power they do not wish to change this set up, in the interest of the people whose sovereignty they exercise. Neither is there a strong movement by the people to have this situation changed. It is doubtful whether even the public wants a totally independent police or whether they would like a police manipulatable through politicians depending on which side of the law one is placed in a given situation! No proper research has been done on this question. Thus, the saying ‘people get the police they deserve.’

In these circumstances, there is no hope that the character of the police will be allowed to develop oriented towards people as its chief client, despite lip service to current world trends such as community oriented policing etc. So the police are compelled to work within this latest paradigm. Hence, public interest will be only marginal.

Now I come to my point. I see a problem for the police to function effectively as an organization even under this paradigm. It is really a structural and a managerial defect. Of late, the Senior DIGs who form the Top Management team of the IGP are posted to the provinces, to the forward headquarters. He sits over and above the local DIG in the provincial capital. He is thus drawn towards the ambit of the sphere of activity of the DIG, as the most senior officer present. He is thus compelled to encroach on the work of his DIG. Similarly, the DIG is drawn to do the some of the work of the SSP [Senior Superintendent of Police]. The SSP in turn is led to do some of the work of the ASPs [Assistant Superintendents of Police].

And the ASP is very often seen doing the work of the OIC. Thereby the supervisory function at each level suffers. The OIC in the meantime has not much work to do other than to be present at the many occasions of a VIPs who visits his area. In view of the political character and also owing to the security concerns, the entire local hierarchy tend to be present, mainly to be seen by the VIP. Thus the OIC has not much time to supervise his men or look at his records or do any court work. The snowballing effect is that most senior officers are found to be immersed in office work, working late into the night, mostly doing their subordinates’ work. As a result of the senior officers doing the work of their subordinates the subordinates miss the opportunity of acquiring more skill, experience and maturity at their different rank levels. Hence, as they go up the ladder, they possess less and less experience both to manage their jobs and to give appropriate directions to their subordinates. They also do not have sufficient confidence in the subordinate to discharge his responsibility. So superiors themselves do the work of the subordinates to ensure that there is no slip up. This is because, the responsibility of getting the job done falls ultimately on the senor officer. So to be sure, he does the subordinate’s job himself! So the subordinate never learns. Thus the situation keeps on deteriorating in a counter snowballing effect. The senior officers on other hand, have no time pay attention to detail or to do any creative work in their higher capacity, beyond performing their routine tasks. The norm is, to get by each day. Neither the officer nor the subordinate is tested or held accountable. So no improvement, or deeper levels of supervision. The result is such as Malabe and Angulana incidents. Many more to follow.

Consequently, the officer levels lose the opportunity to develop their managerial and interpersonal skills though they may acquire the technical skills required for their survival. Thus, there is lacuna in the officering skills at the officer levels. This is the complaint of many subordinates of their superiors. This problem has become further complicated as a result of the absorption of the Police Reserve into the regular force, consequent to an election promise. The details of this problem could not be discussed here as it is beyond the scope of this essay.

In these circumstances mediocrities have a field day. Of course, to facilitate their upward mobility and protection for incompetence, one needs the political clout, for efficiency is not the criterion. Hence, out of necessity, they develop skills of ‘politician management’ as against personnel management etc.

Starting from here, problems escalate from one to the other and spread like a cancer. Thus, it is surprising that even the present level of service delivery is possible.

The article talks about some of the problems associated with management of the police hierarchy that had the system not been so heavily politicised for so long would not have emerged as serious threats to its coherence.

A policing system is a hierarchical institution. Those at the top have responsibility for the behavior of those in different layers within the institution. It is the job of those who are at the top to ensure that all those below do as expected of them. Departmental orders lay down the responsibilities of leadership and of supervision. They prescribe intricate arrangements for the maintenance of documents. The officer in charge of a police station is responsible for what happens within it; the ASP of an area inspects books, makes visits and takes his own notes, by which he keeps track of the work of all police stations under him; superintendents supervise and guide the work of the ASPs; senior superintendents exercise further monitoring and supervision; and deputies to the IGP look after the entirety of the institution.

That was how it was and that is how it is supposed to be. But now any police officer may think this is just a fairytale. Today, the police hierarchy from ASP to IGP cannot even arrange for the proper transport of an alleged suspect when he is escorted to find some material evidence. The oft-repeated story is that during the journey the handcuffed suspect takes a gun or bomb and tries to attack the police, who in turn shoot him dead.

Are the officers of the police hierarchy incapable of devising a system for the safe transport of criminals from one place to another for purposes of investigation? Surely it is not such a difficult task to design guidelines and instructions about the transport of suspects during criminal inquiries. All over the world such things are done quite safely. It does not require extraordinary intelligence to design and implement such a system; however, Sri Lanka’s police hierarchy has proved incapable of doing this much.

Instead of command responsibility, complete carelessness has spread from top to bottom of the law-enforcement infrastructure. Take the case of Douglas Nimal and his wife. Nimal was a police inspector who took his job seriously and tried to arrest some persons involved in drug dealing. Some persons at the top moved against him, and finally he and his wife were killed. No one was arrested or prosecuted for killing a law enforcer who was discharging his duties.

In the Supreme Court and high courts there are constant revelations of police tampering with documents. In fact, there are hardly any cases relating to fundamental rights or torture complaints at high court trials where police have not tampered with books and made false entries. In all cases where arrested persons are later extrajudicially executed, the documents in the books are also manipulated. Had the ASPs and those above them exercised their supervisory powers as required by departmental orders such distortions would not be possible.

The police hierarchy is paid with public funds; however, it is not performing its public duties. There has not been sufficient scrutiny of its work in parliament or in the media. If the lawlessness that the country has descended into is to be addressed, the public must ask questions about what the IGP and his deputies are doing. If by not following legal and departmental procedures they are breaking the law, then who is there to safeguard law and order in the country?

Another feature of the system that Gunawardane identifies is the ever-present danger of greater military control over policing. He notes that:

There seems to be a line of thinking these days that since the military officers who did well under a capable leader, appointing an Army officer will be the panacea to all problems. The naiveté in this thinking is indeed astounding. Because each field is so specialized these days. The thinking seems to be that “you appoint the ‘right ‘man and the rest will fall into place.” One shudders to imagine the consequences.

In fact, analyses of the country’s police problems—from the Soertsz Commission Report in 1946, followed by the Basnayake Commission of 1970 and the Police Service Report of 1995—demonstrate that a central problem from the inception of Sri Lanka’s police system has been its militarised rather than civilian policing style. Insurgencies since 1971 have further militarised it. The appointment of an inspector general from military ranks would only compound problems.

These days, anything and everything is possible within that system, however illegal. Whether police officers engage in drug dealing and protecting the drug dealers; whether they use their powers of arrest and detention to obtain bribes for themselves; whether they help politicians by putting their opponents behind bars under false charges, using anti-terrorism laws and anti-drug laws; or engage in any other type of illegality, there is hardly anything the system can do to stop it. Cosmetic measures such as arresting a few low-ranking officers do not make any difference.

How can these problems be resolved by appointing a military officer to head the police force? Can a military officer establish command responsibility for officers from the lowest to the highest rank? Will not the introduction of a military officer only help the errant superior officers even more, because they can easily mislead and even cheat their new leader, who is totally unfamiliar with the area of work in which they are engaged? Similar experiments elsewhere, where top posts have been given to people from completely different fields, provide enough examples of the distortions that can happen under such circumstances.

A policing system is a public service devoted to law enforcement. Thus, the relations with the public that are required of a policing system are of a completely different nature than those of the military. The political leaders who have proposed bringing an inspector general of police from the military are aware of this. Why, then, do they want to introduce a military leader into the already collapsed police system? They may have other ambitions. A more militarised police may be what is needed to subject the population to greater controls and to displace the rule of law altogether.

For a more militarised system, one need only look as far as Burma—whose military supremo in November 2009 visited Sri Lanka after the president had paid him a call in his own country. In this year, the junta again arranged to keep democracy party leader Daw Aung San Suu Kyi locked up in her house. That case is widely known and condemned globally. A court sentenced Aung San Suu Kyi to five years of rigorous imprisonment. Within hours the junta chief reduced the sentence to 18 months of detention in her own home. The sole exercise of this trial was to give a semblance of legality to an executive order for imprisonment so that this lady cannot participate in any events relating to proposed elections in her country.

In Sri Lanka the case of J.S. Tissainayagam, though not as well known as Aung San Suu Kyi’s, also created waves internationally in 2009. The arrest, detention and trial of this man, a prominent journalist and a human rights activist, received the attention of many governments. The American president, Barack Obama, himself mentioned this case as an example of the repression of journalists throughout the world. All leading media organizations worldwide condemned the arrest, detention and trial and repeatedly called on the government for Tissainayagam’s unconditional release.

Tissainayagam was charged with aiding and abetting terrorism and instigating racial violence by writing a few lines in an article that referred to the armed conflict then taking place in the north. Tissainayagam, who had been a veteran journalist and a human rights activist, had over a long period of time reported matters regarding internal conflicts in the south as well as the north and east. In the late eighties he helped the incumbent president, who was then in the opposition, by preparing and translating documents relating to disappearances and other atrocities in the south.

There was nothing in Tissainayagam’s writing to indicate any attempt to instigate violence or promote racial hatred. There are thousands of similar pieces and none of their authors have been prosecuted. Tissainayagam was singled out for arrest, detention and prosecution solely to intimidate other journalists and newspaper editors publishing materials relating to the war. Several other journalists left the country after his case emerged.

Like the case of Aung San Suu Kyi, in the case of Tissainayagam there were no real grounds on which to base a criminal charge. In both cases the charges were fabricated. The issue before the court in both cases was to decide on the legality and the validity of the charges in the first instance. Both courts proceeded on the basis that fabricated charges had some basis in law and found the accused guilty.

Joseph Stalin’s prosecutor, Andrei Vyshinsky, also conducted trials in which the outcome was predetermined. The trials of the 1930s were known worldwide as show trials. The accused were not really the targets of the proceedings. The accused were mere exhibits to be advertised before the rest of society in order to pass a message to the people. Vyshinsky’s biographer Arkady Vaksberg wrote that the “purpose of the trial had not been to disgrace or, indeed, to annihilate some of the accused but to create a precedent and pave the way for a psychological attack on the population”.

In a similar fashion, the prosecutor proceeded against Tissainayagam and the court sentenced him to 20 years. Previously the Supreme Court had asserted the rights of citizens to freedom of expression and publication. The court has also upheld the rights of citizens to criticize the existing government. However, the High Court trying a case based on special regulations under anti-terrorism laws has gone completely against these traditions.

Sri Lanka’s Ministry of Foreign Affairs has gone even further and in a communiqué stated that criticism of the judgment against Tissainayagam is a slur on the independence of the judiciary. However, in this case, like that of Aung San Suu Kyi, it is the destruction of the judiciary that is the problem, and to point to the court’s non-independence is not a slur but a mere statement of fact.

When the Tissainayagam case came before the UN Human Rights Council in Geneva, the AG himself argued that the 20 years of imprisonment was a minimum sentence and that it was a decision of the court, since Sri Lanka respects separation of powers, just as the regime in Burma disingenuously insisted that the court, not it, was responsible for the Aung San Suu Kyi verdict. What was not placed before the council was that under the PTA—through which the conviction was secured—confessions are admissible as evidence, and acts that are not otherwise crimes are under this law considered offences.

Within Sri Lanka, this does not matter as the whole system of criminal justice is anyhow standing on its head. The law is manipulated and twisted to get whatever result the prosecutor wants. The prosecutors can even serve as defenders, particularly when they participate in preliminary enquiries and subvert the process by various means. For instance, on 30 July 2009 the Lanka News Web reported that,

The Attorney General has requested courts to grant bail to two of the five respondents produced before courts for the alleged financial fraud amounting to Rs. 4,300 million at the Finance and Guarantee Company, which is a subsidiary of the Ceylinco Group.

The reason for requesting to grant bail to the two respective respondents in the case according to the Attorney General is that they had cooperated with the inquiry into the company.

However, it is learnt that the Attorney General’s friendship with the respondents developed during the time he served as the Legal Advisor to the Finance and Guarantee Company is the reason for the request to grant bail to two of the respondents.

The accused in the financial fraud case, who were produced before courts are Deputy Chairman and Chief Executive, Finance and Guarantee Company, Mervyn Jayasinghe, Financial Director Sunil Jayatissa, Executive Director Mohan Srinath Perera, Legal Officer Malini Sabharathnam and Deputy Financial Director Samanthika Jayasekera.

Legal sources say that although the Attorney General wanted to get bail only for Sabharathnam, Jayasekera’s name had to be included to avoid any suspicion.

A team of lawyers led by Attorney Kalinga Indatissa appeared for the respondents when the case was taken before Colombo Chief Magistrate Nishantha Hapuarachchi.

Upon being told by the Attorney General that two respondents should be granted bail due to their cooperation with the CID investigation, Indatissa had challenged the Attorney General in open court to reveal how the said respondents aided in the inquiry.

He had further said the five respondents had equally cooperated with the investigation.

The Attorney General was represented by Deputy Solicitor General Yasantha Kodagoda.

Lanka News Web earlier revealed in a story that the Attorney General did not institute legal action against the respective company due to his close affiliations with it.

Following the Attorney General’s request Sabharathnam and Jayasekera were released on a surety bail of Rs. 100 lakhs each and a financial bail of Rs. 1 lakh each. The other respondents were remanded till August 11.

In September the AG shocked the nation by requesting the High Court of Colombo withdraw an indictment against an accused charged with preparation of forged documents and misleading the CID. The accused, B.A. Abeyratne, is the principal of a well-known Colombo school who was indicted in 2008. The indictment stated that he had influenced an investigating police officer to accept a number of forged documents in an inquiry with regard to the admission of children to the school.

The request to withdraw the indictment was made on the basis of an affidavit filed by the accused, which stated that he would resign from his service at the school and in which he expressed regret about the damage caused to the school by his actions. Besides this, a number of persons wrote to the AG asking him to exonerate the principal, considering his service to the country, to the school and to the sphere of education. It was on the basis of this affidavit and the letters that the AG made the request for the withdrawal of the criminal indictment, despite of the fact that there was sufficient evidence to continue with the prosecution.

Although the High Court refused the request and ordered the trial, the very attempt to withdraw it raises disturbing questions. Are affidavits from accused persons promising good behaviour and letters by others about various services rendered now going to be grounds for the chief prosecutor to withdraw criminal charges? If these are valid criteria for not prosecuting then the AG should not prosecute anyone, as every accused will be willing to give an affidavit promising not to misbehave again. And these days, it would not be difficult for any accused to get letters of recommendation from even the highest places, requesting that an indictment be withdrawn. Only innocent persons, who have failed to develop connections with the corrupt and the powerful, might fail to get such letters.

Let us suppose that the judge allowed the application. Then the AG would argue that it is the court that has made this decision to not prosecute, not his department, and that Sri Lanka respects the separation of powers. Thus, the responsibility for the decision would have been placed on the court. This is the manner in which the responsibility for the absence of investigations and prosecutions into extrajudicial killings at police stations has been explained away on many occasions, where the decision of a magistrate that a killing is “justifiable homicide” is used to exonerate all other parties and cease prosecution.

What is not discussed in these cases is that the investigative authorities and the prosecutors have invariably not placed all the circumstances relating to the killing before the court. With no impartial investigations into such killings and documents forged to give the police version of events, the courts only have the evidence that the police and the prosecutors place before them. Yet later when complaints are made over the absence of investigations and improper prosecutions, the magistrate’s finding is pointed to as the reason for inactivity or inadequacy.

From the above it can be said that whereas at one time there existed a department called the Attorney General’s department, today it exists only in name. It has lost its place as the government’s legal adviser and lost its way as the prosecuting agency. From the way that the government acts now, it is not doing so on the basis of proper legal advice. And judging from the number of cases that constitute serious crimes that are not prosecuted, it is also not possible to say that there is a genuine and an authentic prosecuting agency in the country. Nor is it possible to say that the prosecutions in Sri Lanka are being undertaken on the basis of law.

The demise of the AG’s department is a matter of grave concern because its functions are vital if a nation is to accord with the rule of law. By contrast, where legality itself ceases to have meaning, as in Sri Lanka, the department also becomes meaningless.

How did the department lose its role and arrive at the present position of pathetic subservience to the executive? It did not happen within one day. It was a long journey in which the department leaders gave in to the wishes of the executive, some due to pressures, but mostly due to the opportunism of officers who were too eager to please the executive.

Some episodes are well known: under presidents Jayawardane and Premadasa, the department’s legal advisory function was ignored. It did not resist the 1978 Constitution. There is no evidence to suggest that the department had given any advice to the government about the implications of this constitution for the legal system of Sri Lanka. When Jayawardane started a war on the judiciary, the department did not give advice to the government on the unconstitutional nature of his interference and its possible adverse consequences.

Under these two regimes, the AG’s department persecuted political opponents. The case against Srimawo Bandaranayake and others had its full cooperation. During this time there were also several criminal cases file against SLFP politicians such as Vijaya Kumaranatunga, the present president Mahinda Rajapaksa and others, purely for political reasons. Though these cases didn’t end up in prosecutions, the initial steps were initiated through the department.

The 1982 proposal for holding a referendum to extend the term of parliament for another six years would have shocked any legal department working according to common law traditions; however, Sri Lanka’s AG had no legal advice to offer against this move. Not only was the country’s electoral system completely destroyed, but so too was the very basis of law through which government derived legitimacy.

The best test of legal advice is the advice given on constitutional matters. The AG should have resisted executive moves to undo the basis of constitutionalism. If that led to conflict, the legal adviser should have faced the conflict, rather than avoid it by unconscionable compromises. Had the AG resisted, it would have set off alarm bells about the executive’s serious attack on the legal framework of the country. Even if the executive would not have wavered from its path, it would have met opposition, and the complete destruction of the institutions of law could have been avoided.

While the AG’s department failed to act to oppose extralegal executive actions done in the name of law, the judiciary was dramatically attacked and damaged from within thanks to the work of the former chief justice, Sarath Silva, who resigned mid-year. On 7 July 2009 The Sunday Leader published an article by telecommunications expert Dr. Rohan Samarajiva, “Curtain closes on the Sarath Silva saga” to mark the occasion, of which extracts follow:

I recall a conversation with a telecom CEO when I returned to Sri Lanka in 1998 to work in government. I asked him what his blackest day was. He said it was the third or fourth day of the extended blackouts resulting from CEB unions trying to blackmail the government. He had used up his backup power, backups to the backups, and there was no diesel.

He was trying to supply reliable telecom services; his day of black despair came when the external infrastructure he depended on failed. My nadir was the day I realised that the judicial system of Sri Lanka was failing. It is the external infrastructure for everything. My day of black despair came under the watch of Chief Justice Sarath Nanda Silva, who retired last Friday.

...

The Supreme Court is the final bulwark against assaults on the Constitution in any country. It is customary to say that the Constitution of a country is not what is written down in black and white on paper, but what it is said to mean by the highest Court. But how did the Silva Court safeguard the Constitution?

Abject failure on the 17th Amendment. Selective enforcement on the 13th Amendment (annulling the ad hoc merger of the Northern and Eastern Provinces while turning a Nelsonian eye to the other egregious violations). Outright failure on safeguarding the principle of parliamentary control of public finance, something fundamental to the parliamentary system of government and something written into our Constitution: “Parliament shall have full control over public finance. No tax, rate or any other levy shall be imposed by any local authority or any other public authority, except by or under the authority of a law passed by parliament or of any existing law” (Article 148).

The 2006 budget allowed the Treasury to move funds around among different heads without parliamentary approval, blessed by the Silva Court.

The list goes on. Court tries to set petrol prices, infringing on the powers of the executive; executive refuses to implement court orders; court withdraws orders. Persons held on non-bailable offences are released without explanation by the highest court. The Constitutional terrain at the end of the Silva term looks like what Lanka must have looked after Lord Hanuman’s tail was set on fire. No principles established; no doctrines for guidance; just random devastation.

...

The broad sweep of judicial activism has signalled to all who make economic policies and implement them that it is no longer enough to follow procedure, but to act in ways that would be acceptable to a future court... or to ensure that no one will be offended by the decision, thereby precluding a fundamental-rights challenge. These being impossible, the best course of action is inaction.

This is worse than what happened with government-personnel decisions a decade or so ago. But at least, people in government knew what the rule was and what it applied to: personnel decisions. Now, there is no such certainty or delimitation. All executive actions are fair game. The rule is that there is no rule; one has to guess what the Supreme Court would find acceptable.

Is it worthwhile trying to figure out what the present judges would decide? No, because the time limit on instituting cases has been thrown out. So the decision maker has to guess what would be acceptable to any court in the present and in the future.

So what is the end result? Policy paralysis, something we can ill afford in a fast changing world.

A friend of former AG Kamalasabayson said that when asked at time of retirement what he thought of the legal system of the country, he is said to have remarked that he saw nothing anymore that can be called a legal system; only some buildings. While the former AG tried to keep something of the system intact, the former chief justice played a part in its destruction. In the end, both of their institutions have fallen to zero, and with them, the status of the citizenry who depend upon them.

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