Image: If the CoI recomendations are right the case the Task Force now headed by General Shavendra Silva is unconstitutional. And he must be deprived of his civic rights and so does the president who appointed him to that.
Right at the outset, I must say, that when appointing members to committees such as this, customarily, the President of the Republic says, I am reading from the gazette notification by which these three commissioners were appointed (dated 09th January 2020): “Now therefore I, Gotabhaya Rajapaksa,Rpresident of the Democratic Socialist Republic of Sri Lanka reposing great trust and confidence in your prudence, ability and fidelity do in pursuance of the provisions of section 2 of Commissions of Inquiry Act by these presence appoint you” and so on … that he has confidence in their “prudence, ability and fidelity” and when you look at the names of the three persons so appointed you wonder why he chose those persons.
Upali Abeyrathna- A disgraced member of the Judiciary
A disgraced member of the Judiciary, who was interdicted for misconduct; sent on compulsory transfer… I don’t want to say anything more than what is in the public realm about whom books have been written and published, the famous book “Unfinished struggle” by Victor Ivan, four editions have come out also, for almost one and a half decades those books have been in circulation. Without anybody being able to refute the facts in that book, say much about the Chairman of this Commission. I don’t usually say anything about anyone who’s not able to reply, but these are maters in the public realm.
IGP Chandra Fernando – fined by Supreme Court
One of the others have had Supreme Court imposed fines before he retired former IGP Chandra Fernando: found guilty by the Supreme Court. These are the persons the President considered and when one looks at the report and the way in which they have functioned, we understand why they were handpicked, why such persons were handpicked by the President to do this hatchet job. they have done very well; the job that was given to them to do.
Firstly, they were given a task of receiving complaints from “public officers, employees of public corporations, members of armed forces and police service.” And what do they do? over and above such complaints, they have entertained complaints from various other persons who don’t belong to any of these categories.
Undermining the criminal justice system
The original mandate was later expanded to include the criminal investigation department also, seriously undermining the criminal justice system that we have in our country that goes back for over 100 years. There is a particular system by which the criminal justice system works: The Attorney General as the chief law officer of the State is given a particular recognition both in the Criminal Procedure Code and in the constitution, by virtue of appointment, which seeks to make him independent; by various judgments of the superior courts, including the Privy Council, that recognize the prosecutorial discretion of the Attorney General of the Republic. It is the Attorney General and Attorney General alone who exercises that independent function and who has been repost with a prosecutorial discretion. In our system, the accused person is presumed innocent, afforded all the rights, even the right to remain silent or make a dock statement and avoid being cross examined. He is given the right to choose or to refuse a jury, three times, he can say “I don’t want this panel of jury” without assigning reasons, the whole system is there to ensure, that even if a hundred accused persons; a hundred criminals go free, an innocent person should not be found guilty. That’s the system and that system functions in that way, because the judiciary functions.
So, beyond the fact that the Attorney General, an independent officer, decides to indict somebody, it goes before the magistrate’s court or a high court, then you are afforded the opportunity of two appeals, ordinarily there are two appeals. If it was a trial-at-bar, only one appeal, but one appeal before 5 judges of the Supreme Court, and we heard Field Marshal Sarath Forseka refer to two of those cases so I don’t want to refer to that, but mention that all of those accused persons have had the opportunity of being defended before the trial court and also had the opportunity of appealing against their convictions and sentence. Now when such is the system that we have, we have this Commission interfering in this hallowed procedural safeguard. In fact, there is a statute in our statute books, called “The intermeddlers with suitors Ordinance” and if anybody interferes in the due administration of justice, that person can be brought before court, indicted and found guilty and be sentenced.
These three commissioners to the extent that they have exceeded the mandate given by the very warrant that appointed them blatantly have intermeddled with suits in this country; have interfered with what the Attorney General does in this country.
Witch hunt against Mrs. Bandaranaike
The Commissions of Inquiry Act has been abused in this country repeatedly, most famously in the case of former Prime Minister, the first woman Prime Minister of the world, Madam Srimavo Dias Bandaranaike who was found guilty by a Special Presidential Commission of Inquiry appointed by President Jayawardene, and then deprived of her civic rights.
Now how that happened is worthy of mention in this because of some of the recommendations that have been made by this Commission. Mind you, this is a Commission of Inquiry not a Special Presidential Commission of Inquiry, this commission does not have the right to recommend the deprivation of civic right of anybody. The Act does not give them that right, but they make that recommendation.
Mrs. Bandaranaike was charged with allegations of abuse and misuse of power and corruption and then the Court of Appeal granted her Writ of Prohibition against that Commission and retrospectively an amendment was brought to the Act so that the Special Presidential Commission could find her guilty and then a bill was brought before Parliament; she was found guilty and expelled from Parliament in 1980. The day after her expulsion two sudden amendments were brought to Parliamentary Elections Act which said that “any person who is disqualified by a resolution, from in anyway in participating during the period of disability, at a parliamentary or presidential election.” Such was a witch hunt against Mrs. Bandaranaike and these Acts were used. So those in the front rows of the Government today know very well what a draconian law this is and how this was used against their own party leader and they have now chosen to do it in a much worse manner than what even President Jayawardene did. Because here is the ordinary Commission of Inquiry not a Special Presidential Commission; an ordinary Commission of Inquiry consisting of members with dubious distinction making recommendations to deprive civic liberties of opposition members of parliament.
Now if you look at the Act, the Act does not empower the making of recommendations against Members of Parliament. It is only against public officers and by an amendment later, public institutions, local councils etc. So very clearly gone out of their mandate and have given this report.
The strange case of Pillaiyan
Because of lack of time I will quickly refer to some examples, but before I do that I will make a disclosure under Clause 19 of the Code of Conduct for Members of Parliament because I’m personally interested in the matter. I know members of parliament speak about all their personal matters without making this disclosure, but knowing that this is the rule, I will make a disclosure of my interest in the matter that I am going to speak about.
There is a person called Sivenesathurai Chandrakanthan, now an Honorable Member of this house. He is called “Pillaiyan” now there is a complaint that this Pillaiyan has made to this Commission, saying that he was wrongfully arrested, detained, and some evidence was fabricated against him and two other co-accused made confessions against him and therefore he was deprived of his liberty for five years.
Now in that case that confession was made before a magistrate, not to a police officer like what you normally do in a PTA case: torture a person; extract a confession and the ASP signs below saying that ‘this was voluntarily made before me’. In this case, it was made in the magistrate’s chambers. It was admitted as valid evidence before the High Court at the trial. And accused person Pillaiyan appealed to the Court of Appeal, and the Court of Appeal held that the confession was not validly received. So, he had his right, right or wrong Court of Appeal threw out the confession and thereafter the Attorney General felt now without this confession there was not enough material to continue with the prosecution so the Attorney General entered what we call nolle prosequi and released Pillaiyan. Now that happened in the ordinary course of the judicial proceedings, right or wrong he was able to be released in the ordinary way. But what happened before this Commission?
He had made complaint against four persons, the 1st is myself, “Parliamentarian Sumanthiran” and three police officers, but when you read the report on this there is nothing about me at all, absolutely nothing! Even against the police officers, that they actually took him to the magistrate.
The confession was made before the magistrate. But there is recommendation that you must prosecute those police officers and myself for fabricating evidence. I have no knowledge of any of these matters, neither does the report say that I had anything to do with this. The report doesn’t say that I had anything to do with this. Merely because Pillaiyan has mentioned me as a person against, whom he’s making a complaint there is a recommendation that I be prosecuted for fabricating evidence.
I have nothing to do with this. In saying that, very serious allegations are made against the magistrate. Demeaning things have been said about the magistrate. Now that magistrate is a functioning High Court judge. How dare this Commission as I said the disgraced judicial officer, about whom the whole country knows, makes such statements against the functioning judge? Who gave him the right to do that? Not even the warrant that by which he was appointed gave him that right to make pronouncement against judges like this! Judges are not public officers, as defined in the constitution, Members of Parliament are not public officers, as defined in the constitution, you can only make recommendations, with regard to public officers. Clearly outside the remit that has been given to this Commission, they have made these recommendations.
Very funnily, the recommendation is that the Attorney General must discontinue the prosecution and at the end it says the President must grant him a pardon. So, they covered all sides! Just in case the Attorney General doesn’t withdraw it and found him guilty; grant him pardon. Now this is one example of the way in which this Commission has gone about doing what they have been told to do.
The issue if Civil Rights
In respect of civic rights, since they don’t have the authority to make that recommendation, they make a recommendation that the President must appoint a Special Presidential Commission, which must make this recommendation that they would have liked to make. It’s a hell of a how do you do! pardon my language but it is a hell of a how do you do! That You don’t have the authority to do it, and 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 like to do” and the President goes ahead and appoints a commission such as that!
A case of Torture by police
There are issues here with regard to a matter in which some police officers were found guilty of torture and murder in the Chunnakam Police station, there were two appeals against that, there was a finding of guilt in the High Court, appeal in the Court of Appeal and an appeal in the Supreme court both appeals were dismissed. Those three police officers were found guilty of torture and murder. They were prosecuted on the Convention Against Torture Act. Now there is a recommendation that those persons must be released. Now what does the commission thinks it is? There is a functioning judiciary!
The Attorney General wrote to this Commission saying “do not interfere in my functions. Don’t summons members of the Attorney General’s department before this commission. You have no right to do that.” When two senior officers went before this commission and wanted to support the letter sent by the Honorable Attorney General, they were refused permission. This is worse than any “Kangaroo Court” that you can imagine.
And the Government without any shame, is presenting this report to this house and even moving the adjournment motion wanting to implement these recommendations. Absolutely without shame!
That is why when they wanted to move the resolution I said, “let them move it how do you justify this?” The seconder of the motion who spoke for almost an hour today complained about another Commission in which he was not afforded the cross examine of witnesses, now in this Commission not only the right to cross examine witnesses. Now in this Commission, we have not even been noticed, with regard to Pillaiyan’s complaint that I talked about, I wasn’t even noticed. I was noticed about 4 or 5 matters in which I was told I’m a respondent, I went before the Commission, and said “if you have named me as a respondent give me the material on which you decided that I must be termed a respondent.” The chairman of the Commission said “yes, you have all the right, we will give it to you.” I said “Give it to me in the language that I understand.” They said “Yes, you are entitled to translation. We will give it to you.” I didn’t get anything,
I raised a question of privilege here, because the day I attended parliament when I went back home, the notice sitting in my house saying come before the commission at 2.00 p.m. that day, I saw it at 5.00 p.m., I immediately wrote to the Commission. Every summons I have responded! I have sent by fax, I have intimated to the Commission why I was unable to attend. Twice I have attended and I have intimated to the Commission that I was attending Parliament that day and that I got the notice at 5.00 p.m. on that day. Despite that, four days after getting my letter the Commission’s Chairman makes a statement to the press where he says, “these Members of Parliament are evading the Commission.” Now on that I have raised a question of privilege and the Honorable Speaker has referred it to the Privileges Committee and I hope the Committee will make the right decision in this regard. So, what the Chairman told the press, “Former MPs Mangala Samaraweera, Patali Champika Ranawaka and several others were named as persons evading the Presidential Commission of Inquiry appointed to probe political victimization. Chairman of the PCoI, retired Supreme Court Judge, Justice Upaly Abeyratne instructed to name those individuals, together with MP’s Rauf Hakeem, Field Marshall Sarath Fonseka, President’s Counsel M.A. Sumanthiran, R Sampanthan, Anura Kumara Dissanayake and former MP Malik Samarawickrama for failing to comply with notice issued to appear before the CoI.
Now with regard to this ‘anti-corruption committee’ or whatever the commission refers to, I had no knowledge of any such committee, we were never members of any such committee, we were never notified by either the cabinet or anyone, when we were appointed to any such committee. We did not attend any meeting of any such committee, but even otherwise how does that become a matter on which these recommendations can be made?
Now there is a COVID-19 Task Force appointed by the President. Previously after the Tsunami there was a Task Force. Various task forces were appointed by executive fiat. Now can somebody say that because the Constitution doesn’t refer to such committees that it was unconstitutional? If that is the case the Task Force now headed by General Shavendra Silva is unconstitutional. And he must be deprived of his civic rights and so does the president who appointed him to that!
So, when one reads through this report one can’t give it any credibility. More than the fact that it has exceeded its mandate, even where it purports to act within its mandate it has gone against the judiciary of this country, rule of law and has sort to make a mockery of the system of justice in this country.
–M.A. Sumanthiran Parliamentary Speech on the Commission of Inquiry into Political Victimization on 22 April 2021.