Pujith and Hemasiri free: What’s in store for Sirisena?

There has been a mixed reaction to the acquittal by the Colombo High Court Trial-at-Bar, on Friday, of former Defense Secretary Hemasiri Fernando and former Inspector General of Police Pujith Jayasundara in two cases against them for their failure to prevent the Easter Sunday terror strikes. They had been indicted on 855 charges each in two different cases, but the three-judge bench was unanimous in its verdicts that none of the charges had been proved beyond doubt, and, accordingly, the cases against them were dismissed without defense witnesses being called.

The verdicts in the two emblematic cases were by a three-judge bench comprising Namal Balalle, Aditya Patabendige, and Mohamed Irshadeen.

Archbishop of Colombo Malcolm Cardinal Ranjith has said, without making direct reference to the verdicts at issue, that he has lost faith in the current government and the Attorney General’s Department, where his mission to have justice served for the victims of the Easter Sunday terror attacks, is concerned. His consternation is understandable, but it was obvious from the beginning that the two cases against Fernando and Jayasundarawere very weak. Murder and attempted murder were among the charges against them.

Judges’ observations

Some observations made by the judges who delivered Friday’s verdicts were of interest. Judge Irshadeen said the Attorney General should have thought twice before filing the case against the former Defence Secretary Fernando. Judge Aditya Patabendige said the evidence presented before the court had shown that Fernando had been in a helpless position in making decisions, and former head of the State Intelligence Service, SDIG Nilantha Jayawardena, had neglected his responsibilities and Fernando’s arrest was questionable. SDIG Jayawardena had tried to place the blame for the attack on someone else, the Judge noted. Interestingly, Jayawardena has become a state witness.

Judge Patabendige, announcing the verdict in the case against Jayasundara said that the AG should be cautious in pressing criminal charges against people and it was unacceptable to file cases against government servants alone when politicians were above them—the keyword here is ‘politicians’.

The Catholic Church’s demand that criminal proceedings be instituted against Maithripala Sirisena, who was the President and Defense Minister at the time of the Easter Sunday carnage (21 April 2019) for his failure to prevent it should be viewed against the above-mentioned observations.

Sirisena’s future

What lies in store for Sirisena on the legal front? Now that Fernando and Jayasundara have been acquitted, the question being asked in legal and political circles is whether criminal charges will be brought against Sirisena, who was above them.

As many as 109 civil cases have already been filed against Sirisena in the Colombo District Court by the surviving victims of the Easter Sunday attacks, and the families of the deceased, demanding compensation for his alleged failure to prevent the carnage despite having received sufficient intelligence of impending attacks. Sirisena has denied these allegations and sought to have the civil cases dismissed, and the Civil Appeals High Court of Colombo has decided to take up his petition, which was called before Judges Frank Gunawardena and Saman Weeraman on 15 Feb. The court will take it up on 09 March, 2022.  

The fact that Sirisena and his party, the SLFP, have chosen to go on the offensive against the government while being a part of it makes one wonder whether he is confident that criminal proceedings will not be instituted against him. He has publicly stated that he cannot be sent to prison over the Easter Sunday terror attacks. His legal team must have studied the findings and recommendations of the Presidential Commission of Inquiry, which probed the Easter Sunday carnage besides the cases filed against others including Fernando and Jayasundara. The acquittal of Fernando and Jayasundara may have kindled his hopes to some extent. But if the aforesaid observations by the HC judges about politicians and public officials are any indication, he will realize that there is cause for concern.

Sirisena, however, has been stepping up attacks on the government of late. He makes no bones about the fact that the SLFP is planning to form a government of its own. He said so again recently, according to the Hiru TV news bulletin on Saturday (19). He was very critical of issues such as the shortages of essential commodities, attacks on media freedom, the fertilizer crisis, etc., and the message he has conveyed to the public is that an SLFP government is the only way to ‘save’ the country. He has obviously got under the skins of the SLPP leaders by cashing in on the government’s difficulties. Anyway, there is no love lost between him and the ruling family, some of whose members.

Govt.’s veiled threat

The SLPP has already sought to humble its coalition partners, most of which are rebelling against it. Ten of the constituents of the ruling coalition have put forth some proposals, spelling out how they think the government should act to revive the economy and fulfil other promises to the public. The recent SLPP rally in Anuradhapura, without the participation of any of its allies, was a clear message that it is ready to go it alone at future elections, and others may join it on its own terms. But under the Proportional Representation system, it is not advisable for the main political parties to contest elections alone.  

It is thought that Sirisena will be safe, where calls being made for his prosecution are concerned, so long as he is in the SLPP government, and he will have to face prosecution if the SLFP breaks away or he becomes a political threat to the ruling family again.  

A statement President Gotabaya Rajapaksa made at a ceremony to mark the opening of the new Kelani Bridge in November last year is seen as a veiled threat to Sirisena. The President digressed in his speech to mention that the Presidential Commission of Inquiry (PCoI), appointed by the previous government to probe the Easter Sunday terror attacks, had found the yahapalana administration, including its Prime Minister and the President, responsible for the tragedy. He said his government had left the task of serving justice entirely to the judiciary, and did not interfere with the judicial process, at all, but if anyone wanted it to expedite the process, it could have an act of parliament passed to have  those responsible for the tragedy deprived of their [civic] rights. He said his government had a two-thirds majority for that purpose.

But Sirisena knows that times have changed, and the government will have its work cut out to deprive anyone of his or civic rights. The UNP has not been able to live down the imposition of civic disabilities on the late SLFP Prime Minister Sirima Bandaranaike.

Sirisena becoming overconfident?

However, the increasing intensity of Sirisena’s criticism of the government and his oft-repeated declaration that he is planning to form an SLFP government cannot be dismissed as mere political rhetoric, for, he cannot be unaware that they are provocative and have a deleterious effect on the SLPP-SLFP relations. Perhaps, he is confident that he cannot be found guilty of the criminal charges his critics want pressed against him even if the government decides to have him prosecuted. How his legal team views the verdicts in the cases against Fernando and Jayasundara remains to be seen.

If the government chooses to have criminal proceedings instituted against Sirisena at this late stage, such action may go down well with those who are seeking justice for the Easter Sunday terror victims, but will be widely viewed as being politically-motivated because he has taken on the government. But a desperate government is impervious to reason and criticism. Chances are that Sirisena’s lawyers will have to burn a lot of midnight oil in the coming months.