Opposition legislators have ripped apart the credentials and work of the Commission of Inquiry (CoI) appointed by President Gotabaya Rajapakse to look into alleged cases of political victimization. The recommendations, widely seen as an affront to the law and undermining the work of the Attorney General and the judiciary, sounds the death knell for impartial prosecutions in politically sensitive cases.
The cases the CoI considered were those where members of the military were implicated for alleged human rights violations and cases against several political top notches and their cronies for financial impropriety including misappropriation of State resources.
The CoI reviewed a large number of ongoing cases, including several emblematic ones. They included the murder of Sunday Leader editor Lasantha Wickremetunge, the abduction of journalists Prageeth Ekneligoda and Keith Noyahr, the Wasim Thajudeen case, the Avant-Garde case, the abduction of 11 people from Kotahena and suburbs, cases of financial misappropriation including State funds involving MP Udaya Gammanpila, Basil Rajapakse and Yoshitha Rajapakse and the Welikada prison massacre.
In addition to recommending the dismissal of cases that are currently ongoing in Court by acquitting the accused of all charges and withdrawing their indictments, the CoIrecommends criminal proceedings against investigators, lawyers, officers of the Attorney General’s Department, witnesses and others involved in these cases. In one, the conviction of Duminda De Silva, the CoI recommends that the Supreme Court’s affirmation of the decision of the Court of Appeal is reviewed. The Supreme Court is the highest in Sri Lanka’s judicial system and is also the final appellate court.
‘This Commission is worse than any kangaroo court,’ stormed Tamil National Alliance parliamentarian MA Sumanthiran during the adjournment motion on the Resolution. ‘When one looks at the Report and the way in which the CoI has functioned, we understand why such persons were handpicked by the President to do this hatchet job’, he lashed out.
The Resolution was hurriedly tabled in Parliament by the President’s brother Prime Minister Mahinda Rajapakse on 9th April just one day before the start of the traditional new year holidays prompting the Bar Association of Sri Lanka (BASL) to say it was ‘extremely concerned about the timing and manner in which it was placed in the Parliament Order Book’.
The Resolution was to get Parliament’s approval to implement the recommendations of the CoI, primarily the dismissal of ongoing cases, bringing criminal charges against investigators, prosecutors and lawyers and referral to the Commission to Investigate Allegations of Bribery or Corruption and the InspectorGeneral of Police among others.
The BASL in its statement said the ‘legal principles governing the withdrawal of an indictment are well established in terms of the Code of Criminal Procedure and jurisprudence of the superior courts and if at all must be done by the Attorney General or the Commission to Investigate Allegations of Bribery or Corruption in very limited circumstances and that too upon consideration of all relevant facts and with the permission of the relevant court. There should be no departure from this procedure’.
The CoI was appointed to investigate allegations of political victimization between 8th January 2015 and 16th November 2019. Its three commissioners are Upali Abeyrathne (Retired Judge of the Supreme Court), Daya ChandrasiriJayathilaka (Retired Judge of the Court of Appeal) and Chandra Fernando (Retired Inspector-General of Police).
‘Upali Abeyratne is a disgraced member of the judiciary who was interdicted for misconduct and sent on compulsory transfer’, said MP Sumanthiran. Leader of the Janatha VimukthiPeramuna Anura Kumara Dissanayake told parliament during the adjournment motion that judge Abeyratne has been instrumental for the label that Sri Lanka’s judiciary has for being corrupt. Mr Dissanayake, who went on to speak about the other Commissioners, said that Chandra Fernando carries Basil Rakapakse’sfiles when he goes to Court and also does this in the office of the Sri Lanka Podu Jana Peramuna. He said he will refrain from speaking about what an audit report said about Mr Fernando in the interests of the latter’s family.
The scope of the Commission’s mandate was to accept complaints made by members of the tri-forces or public officials but in some cases, like that of Duminda Silva, went beyond it by accepting complaints from others such as family members.
The cases the CoI considered were those where members of the military were implicated for alleged human rights violations and cases against the Rajapakse family and its cronies for financial impropriety including misappropriation of State resources.
The CoI’s Report has been tabled in Parliament but has not been made public.
The BASL said although it had requested a copy of the Report it has not been forthcoming. It has made an application under the Right ToInformation Act to get a copy of the Report. There will be stiff opposition from the BASL to any of the CoIs recommendations being implemented. ‘We will intervene if any cases come up’, said Deputy President of the BASL Anura Meddegoda.
In an unprecedented move, the COI also recommended the appointment of a Special Presidential Commission of Inquiry which has the power to strip citizens of their civic rights because the COI itself does not have the mandate to do it. “This is a hell of a how-do-you-do. Pardon my language. But it is a hell of a how-do-you-do,” charged MP Sumanthiran. “You don’t have the authority to do it, and so you are telling the President because we don’t have the right to do it, appoint another commission – a puppet commission – just to do what we would have liked to do.’ The usual procedure is for the recommendations of a CoIto be referred to the Attorney General for measures to be taken under the country’s penal law.
The Special Presidential Commission of Inquiry, whose mandate expires on 29th April, consists of Dhammika Priyantha SamarakoonJayawardena (Judge of the Supreme Court), Khema Kumudini Wickremasinghe (Judge of the Supreme Court) and Justice SobhithaRajakaruna who replaced RathnapriyaGurusinghe (Judge of the Court of Appeal).
Meanwhile, the International Commission of Jurists called the resolution an ‘impunity resolution’ and urged parliament to ‘categorically reject it. ‘The recommendations of the CoI constitute an interference with the independent functioning of the judiciary as judicial decisions and court proceedings have been reassessed outside the judicial structure.
Involving parliament in giving effect to these recommendations is contrary to the principle of separation of powers as provided for in the Sri Lankan constitution.
MP Sumanthiran told Parliament that Sri Lanka has a statute called the Inter-Meddlers with Suitors, which provides for a person who interferes with the due administration of justice to be brought before the Court, indicted and sentenced if found guilty. He accused the three commissioners of the CoI of blatantly inter-meddling with suits and with what the Attorney General in this country does.
Sri Lanka’s record of Commission’s of Inquiry has been an abysmal one which has been riddled with accusations of political meddling and bias. The Special Presidential Commissions of Inquiry have been equally notorious, most notably the one which stripped the civic rights of the world’s first Prime Minister SirimavoBandaranaike.
Below are the CoI’s recommendations in some of the cases that they looked at.
They were taken from a commentary prepared by the Centre for Policy Alternatives which recorded a total of 48 cases that were reviewed by the CoI.
The investigation of the abduction of 11 persons from Kotahena and suburbs between 25 August 2008 and 21 March 2009 – the CoIrecommended that the accused including Admiral Wasantha Karannagoda, should be acquitted of all charges and the indictment is withdrawn. It also recommends that investigators and witnesses are charged under the Penal Code and Bribery Act for fabricating evidence.
The investigation into the assassination of MP Nadaraja Raviraj -The CoI recommends that the accused are acquitted of all charges and that the Attorney General withdraws the indictment. It also recommends that investigators and witnesses are charged under the Penal Code and Bribery Act for fabricating evidence and for wrongful confinement.
The investigation into the alleged financial irregularities in various projects under the DiviNeguma Department- the CoI recommends that the accused are acquitted and the indictments are withdrawn.
The investigation into allegations of financial fraud and misappropriation of public property during the launch of the Carlton Sports Network (CSN) channel – the CoI recommends that several persons charged in relation to it, including Yoshitha Rajapakse, are acquitted and that investigators and others are charged under the Penal Code and Bribery Act for fabricating evidence and for wrongful confinement.
The investigation into the alleged misappropriation of funds allocated for the Tharunyata Hetak Organisation – the CoIrecommends the acquittal of Nalaka Godahewaand Dhammika Perea and the withdrawal of the indictment which was filed in the case. The CoIrecommends that MPs and investigators in the case are charged under the Penal Code and the Bribery Act for bringing false charges with intent to injure and for corruption.
The investigation into the alleged deceitful registration of an elephant – the CoIrecommends that former Magistrate ThilinaGamage is acquitted of all charges and the indictment is withdrawn. The CoI also recommends that those who brought the againstMr Gamage are charged for fabricating evidence and corruption under the Penal Code and the Bribery Act.
The imprisonment of Duminda Silva -the CoIrecommends that the Attorney-General should request a larger bench of the Supreme Court to review the guilty verdict and the death penalty. The CPA report says the case in the assassination of Bharatha LakshmanPremachandra was decided and determined by a High Court Trial at Bar and the decision affirmed by the Supreme Court, the highest court in Sri Lanka. It points out that it is doubtful if it can be referred to a Presidential Commission of Inquiry under these circumstances and there is no precedent for a Presidential Commission of Inquiry to investigate, vacate or overturn judgments made by Sri Lanka’s highest Court.
The investigation into the alleged misappropriation of funds allocated to the Sri Lankan Embassy in the United States- the CoIrecommends that Jaliya Wickramasuriya is acquitted of all charges in relation to this case, the State take necessary measures for the removal of the travel ban imposed on him by the United States and that the respondents involved in the case are charged for the offence of fabricating evidence.
The investigation into Avant-Garde – the CoIrecommends that Nissanka Senadhipathi, Chairman of Avant-Garde, and others involved in the case are acquitted of charges against them and their indictments withdrawn. It also recommends that MP Anura Kumara Dissanayake, SSP Shani Abeysekara and former Admiral Ravindra Wijegunaratne are charged for the offences of fabricating evidence and corruption under the Penal Code and the Bribery Act and the police officers in the case are charged for wrongful confinement.
The investigation into the alleged misappropriation of public funds by former Minister Rohitha Bogollagama – the CoIrecommends that the indictment filed against the former minister is withdrawn and a reconsideration of the facts of the case by an independent commission.
The investigation into the Welikada prison massacre- the CoI recommends that the Attorney General makes a decision on the ongoing case with the help of the CoI’s findings and that the accused are reinstated with all promotions due to them.
The investigation of financial irregularities in the MiG aircraft deal with Ukraine – the CoIrecommends that the Attorney General intervenes in the case and discontinues it. It also recommends withdrawing the court order which was issued to freeze bank accounts of former Ambassador Udayanga Weeratunga and that disciplinary action is taken against Inspector Nihal Francis, for obtaining the INTERPOL red notice by presenting false evidence against MrWeeratunga.
The investigation of the death of WasimThajudeen and misuse of state vehicles- the CoIrecommends that the Attorney General intervene and report to the Colombo Magistrate’s Court that proceedings of the case filed against Captain Tissa Wimalasena, who was in Mahinda Rajapakse’s security detail and who was arrested by the Financial Crimes Investigation Division (FCID) in 2017, should no longer be continued.
The investigation into the murder of LasanthaWickrematunge– the CoI recommends the acquittal of former senior DIG PrasannaNanayakkara who was arrested for concealing evidence, and the dropping of all charges against him.
The investigation into the 16 acre land in Malwana– the CoI recommends the withdrawal of the indictment and that action is taken against the complainant and police officers in the case who brought false charges against Basil Rajapakse who allegedly, is believed to have bought the land.
