Report: Sri Lanka Briefing Note. April 2021
President Gotabhaya Rajapakse appointed a Commission of Inquiry chaired by retired Supreme Court Judge Upali Abeyratne and comprising retired Court of Appeal Judge Chandrasiri Jayathilake and former Inspector General of Police Chandra Fernando to inquire into and report on allegations of victimization of public officers, employees of public corporations and members of the armed forces and the police during the period 08 January 2015 to 16 November 2019.
The Cabinet of Ministers and have decided to implement the recommendations of the Commission. The President has, based on the recommendations of the Commission, appointed a Special Presidential Commission of Inquiry for the implementation of the same.
Parliament Order Book for April 21 lists a motion that calls upon Parliament to resolve to implement decisions and recommendations mentioned in the Item No. 09 and 10 of the PCoI report. Item No. 09 includes decisions and recommendations connected to 61 complaints accepted and examined the Commission. In almost all cases, the Commission has recommended that cases filed against the complainants be withdrawn and action taken against the investigating officers and those who lodged complaints against these individuals.[1] ( See Annex to this report)
Although the Commission was appointed to investigate and report on victimization of public officers etc, the Commission has, ultra vires of its mandate, made a number of recommendations that have an adverse and a damning effect on the Rule of Law, democratic governance, the judiciary, the process of criminal justice etc. It has cast aspersions on the judiciary, the Office of the Attorney-General, law officers of the State and members of the unofficial Bar.
The Attorney General had informed the Commission by a written communique on 22 June 2020 that the Commission had no jurisdiction to go into complaints made by private individuals. The Members of the Commission have refused with arrogance to hear even the submissions of the Deputy Solicitor Generals Wickum De Abrew and Rohantha Abeysuriya who sought the permission of the Commission to make submissions based on the letter sent by the Attorney General and have even refused to make a ruling on the letter written by the Attorney General and have proceeded with the relevant inquiry unperturbed.
The Commission has in many other matters ‘pronounced’ that persons who have been convicted by courts should not have been so convicted, that accused persons who are now being tried in courts are innocent and should be acquitted and discharged, and that further criminal proceedings should not be continued against persons awaiting trial before Trial at bar, High Court and Magistrates’ Court. The recommendations by the Commission have concluded that the judiciary of this country have indulged in a witch-hunt and subjected the Judiciary to humiliation on the basis that the judiciary continues to victimize such persons.
Present and past Senior officials of the Attorney-General’s Department such as Additional Solicitor General Wasantha Navaratna Bandara PC and Solicitor General Dilrukshi Dias Wickremasinghe PC who were only performing their official functions have come under unfair criticism with vituperation in derogation of the professional and official duties of such officers, and therefore the Office of the Attorney-General, has been ridiculed attributing collateral reasons and political motivations in forwarding indictment and or recommending charges.
Members of the unofficial Bar who had only done their duty by their clients and or taking up matters in Public Interest as per the objectives of the Bar Association of Sri Lanka have been vilified and portrayed as been involved in political victimization and or fabrication of evidence and or indulged in corrupt practices as provided for under the Bribery and corruption law and further recommended that action should be taken as provided under relevant laws.
The procedure that has been adopted by the Commission is not provided for in the Code of Criminal Procedure and is arbitrary, capricious and impinges on the powers and the authority of the Attorney General who is also the Principle Law officer of the State.
Among the recommendations of the Commission are:
- That accused who are facing trial be acquitted and discharged from the proceedings of the Magistrates Court,
- That the accused facing trial in the High Court and or High Court Trial at Bar be acquitted and discharged and or indictment to be withdrawn by the Attorney General,
- That the Officers of the Attorney General’s Department who prosecuted these accused, other Attorneys at Law who have voiced their concerns in respect of these matters be charged for fabricating false evidence under Section 189 of the Penal Code and reported to the Commission to Investigation Bribery or Corruption n to be charged for corruption.
- That the Police Officers who conducted investigations be charged for fabricating false evidence under Section 189 of the Penal Code and reported to the Bribery and corruption Commission to be charged for corruption.
- In a concluded quadruple murder case tried by a High Court at Bar and the judgement affirmed by a full bench of the Supreme Court wherein the accused (including Duminda Silva, a politician/ former Member of Parliament) were sentenced to death, it has been recommended that the Attorney General should reopen the case and move to discharge the accused.
A detailed summary of 50 important cases of the CoI report are given in the attached Annex. (118 Pages)
Comments on the report:
- Presidential Commissions of Inquiry (PCoI) are designed in law to be inquisitorial bodies with power to entertain a wide range of information. The submissions are not public and there is no requirement to adhere to procedural safeguards that are a necessary part of civil or criminal legal proceedings. This means the findings of a PCoI cannot be considered findings reached by adherence strict rules of evidence or public transparency.
- This is highlighted in the concerns raised, which state that findings of this PCoI mostly rely on hearsay and statements by the complainants themselves or witnesses on their behalf.[2] Principles of natural justice has not been adhered to as both sides have not been given a fair and equal hearing.[3] It has been reported that accused law enforcement officers were not given the opportunity to present their own evidence or cross-examine witnesses.
- This PCoI report has essentially made a series of political commentaries without any corroborating evidence, thus undermining its independence. Attempts made by the PCoI to halt ongoing trials and judicial proceedings before various courts, has stated that persons who have been convicted by courts should not been so convicted and calling for the acquittal of those being currently tried for offences before the Courts, amount to interference in independent judicial proceedings, and contempt for the reason that it is prejudicial to the maintenance of the authority and impartiality of the judiciary. The recommendations of the PCoI in effect undermine the judiciary by publicly condemning the judiciary as political tool for engaging with rigour in a process of testing of evidence and fair trial, which the PCoI itself has not afforded its respondents.
- The findings and recommendations of the PCoI have a chilling effect on law enforcement and legal officials such as officers of the Attorney General’s Department and discourage such officials from acting impartially and independently in bringing perpetrators to justice.[4]
- Members of the unofficial Bar who have represented their clients and or appeared in public interest cases have been vilified and portrayed as been involved in political victimization. This has also created a hostile environment for public interest litigation and provision of legal representation.
- The members of the Commission themselves and their suitability to make findings and recommendations on political victimisation have been censured. The Chairperson, has been the subject of disciplinary inquiry and faces allegations of misconduct.[5] Further, concerns relating to conflict of interest of another Commissioner, former Inspector General of Police, Chandra Fernando had also been raised but not taken into consideration.[6]
- Certain persons who were never involved in the ACC such as Saman Ekanayake, Secretary to the former Prime Minister, have been named as respondents. Others, such as former President Maithripala Sirisena who presided himself over the meeting of the ACC on 5th February 2015[7], and former Inspector General of Police Illangakoon who set up the Financial Crimes Investigation Department (FCID) have not been held responsible.[8] Further calling into question the independence of the PCoI and political victimization and incentivization that has been wielded by it.
- In terms of the Commission of Inquiry Act (s.7(2)), the Commission can summon individuals living within Sri Lanka. Both Dr. Jayampathi Wickramaratne, JC Weliamuna, Mr. Prasad Kariyawasam, Capt. Welagedara – were living outside the country and cannot be summoned but the CoI had made adverse recommendations. Even those who were summoned had been treated adversely with personal and derogatory remarks made by the Commissioners themselves.
- Members of the ACC never received formal appointment letters but the officers serving at the Secretariat received letters of appointment consequent to formal approval by the Cabinet. The financial provisions were duly approved by the Secretary and the then Finance Minister Ravi Karunakayaka. It is important to note that Hon. R. Sampanthan, Member of Parliament and the Leader of the Tamil National Alliance, Hon. Anura Kumara Dissanayaka, Member of Parliament and the Leader of the People’s Liberation Front (JVP) and Hon. M. A. Sumanthiran, Member of Parliament did not attend ACC meetings. All others received invitations for meetings which were scheduled in an ad hoc manner and mostly often in the form of requests over the phone to be present at meetings. Apart from the Avant Garde case, which was raised for discussion by Hon. Wijedasa Rajapakse (who is the same person who is named as the sole witness by the PCoI in making allegations against others purportedly as members of the ACC), there is no record of and the ACC did not discuss any individual or specific cases. The only information reported to ACC was the number of investigations pending and cases filed and the needs of the agencies. None of these factors have been considered by the PCoI in making allegations against members of the ACC.
- Some of the suspects and accused whose ‘acquittal and discharge’ has been recommended are private individuals who did not come within the purview of the Commission. An example is Nissanka Senadhipathi, a financial backer of the ruling party.
Comments on the Special PCoI (2021)
The PCoI has recommended that a Special Presidential Commission of Inquiry be established to advise Parliament to investigate the ACC’s and Anti-Corruption Secretariat’s violation of the Constitution and punish the 22 Respondents named in the report.
On 29th January 2021, a Special Presidential Commission of Inquiry (Special PCoI) was established and comprises of (1) Hon. Dhammika Priyantha Samarakoon Jayawardena Esquire (Chairperson) Judge of the Supreme Court, (2) Hon. Khema Kumudini Wickremasinghe, Judge of the Supreme Court and (3) Hon. Rathnapriya Gurusinghe, Judge of the Court of Appeal. The Special PCoI was mandated to investigate into whether persons mentioned in item 8[9] of the PCoI’s report had violated the Constitution, carried out political relations, or committed abuse or misuse of power, interference, fraud, corruption or criminal misuse.[10] It is important to note that the Special PCoI is restricted to investigating person named in item 8 and does not contemplate considering whether the then President, the then Cabinet of Ministers, the then Inspector General of Police and the then Attorney General who were also part of the ACC and its activities. This partiality demonstrates the political bias in the course of action taken in establishing the Special PCoI.
Hon. Rathnapriya Gurusinghe, Judge of the Court of Appeal has since resigned and Hon. Sobitha Rajakaruna, Court of Appeal Judge has been appointed in his place.
After submitting its report on 8th December 2020[11], the Chairman of the PCoI, retired Supreme Court Judge, Upali Abeyratne, was appointed as Chair of the Office of Missing Persons (OMP).
A Special Presidential Commission of Inquiry is established in terms of the Special Presidential Commission of Inquiry Law of 1978. A notable feature of such a Commission is that its inquiries are considered ‘judicial proceedings’[12] for the purposes of the Penal Code and the Commission is empowered to recommend to the President that civic disability be imposed[13]. However, the lack of independence draws on the fact that members of the Commission are appointed by the President and the Chief Justice or the Judicial Service Commission are not involved.
The Sri Lankan Constitution empowers a Special Presidential Commission of Inquiry to impose civil disabilities and remove legislators.
Article 81 of the Constitution of Sri Lanka states as follows:
(1) Where a Special Presidential Commission of Inquiry established under the Special Presidential Commissions of Inquiry Law, No. 07 of 1978 and consisting of a member each of whom is a Judge of the Supreme Court, Court of Appeal, High Court or the District Court recommends that any person should be made subject to civic disability by reason of any act done or omitted to be done by such person before or after the commencement of the Constitution, Parliament may by resolution pass by not less than two-thirds of the whole number of Members (including those not present) voting in its favour –(a) impose civic disability on such person for a period not exceeding seven years, and(b) expel such person from Parliament, if he is a Member of Parliament.
Subsection (3) states the resolution once endorsed by the Speaker in the form of a certificate “…shall be conclusive for all purposes and shall not be questioned in any court, and no court or tribunal shall inquire into, or pronounce upon or in any manner call in question, the validity of such resolution on any ground whatsoever.”
This Constitutional provision was introduced by the then President J R Jayawardene and was used against his then opponents precedent Prime Minister Mrs Sirimavo Bandaranaike and Felix Dias Bandaranaike (who held a cabinet position in Mrs. Bandaranaike’s government). Mrs. Bandaranaike was retrospectively found guilty of “acts of political misuse or abuse of power” (not being offences under any law) during her administration, and civic disabilities imposed meant she was deprived of the right to hold or campaign for public office, or to support anyone else who did. She was stripped of her civic rights[14] for seven years and expelled from Parliament.
The recommendations for a Special Presidential Commission of Inquiry by this PCoI signals that the President intends to empower a body capable of triggering a process by which civic disabilities are imposed on individuals. Section 9 states “the commission shall recommend whether such person should be made subject to civic disability, and the President shall cause such finding to be published in the Gazette as soon as possible, and direct that such report be published.” The procedure adopted, the clear partial aims of the series of events encapsulated in the PCoI and Special PCoI, and the possibility that several members of parliament sitting in opposition (including leaders of key political parties) to-date and persons having served the state in professional capacities can be potentially subject to imposition of civic disabilities, is extremely damaging to the rule of law and maintenance of checks and balances in the governance of the country.
[1] https://srilankabrief.org/sri-lanka-parliamne-tto-vote-on-a-mortion-to-withdraw-on-going-court-cases-and-to-take-action-against-the-investigating-officers /
[2] Full Text Of The Leaked Report: War Criminals, Murderers And Fraudsters Exonerated By Nandasena’s Political Victimisation Commission, (Colombo Telegraph, 28 January 2021) https://www.colombotelegraph.com/index.php/full-text-of-the-leaked-report-war-criminals-murderers-and-fraudsters-exonerated-by-nandasenas-political-victimisation-commission/
[3] Upali Abeyrathana commission has overstepped its mandate; Lawyers to move CA against PCoI report, (Sri Lanka Brief, 1 February 2021) https://srilankabrief.org/2021/02/upali-abeyrathana-commission-has-overstepped-its-mandate-lawyers-to-move-ca-against-pcoi-report/
[4] Alan Keenan and K Mudiyanse, Sri Lanka: Under Rajapaksas’ Watch, Rule of Law Suffers the Onslaught of Politics (The Wire, 13 November 2020) https://thewire.in/south-asia/srilanka-rajapaksa-rule-of-law-suffers-onslaught-politics
[5] Victor Ivan, Decline of the Judiciary (Daily Financial Times, 7 February 2020) http://www.ft.lk/columns/Decline-of-the-Judiciary/4-695192
[6] Alan Keenan and K Mudiyanse, Sri Lanka: Under Rajapaksas’ Watch, Rule of Law Suffers the Onslaught of Politics (The Wire, 13 November 2020) https://thewire.in/south-asia/srilanka-rajapaksa-rule-of-law-suffers-onslaught-politics
[7] See page 401 of the PCoI on Political Victimization (2020) report.
[8] Sri Lanka Brief (1 February 2021) https://sinhala.srilankabrief.org/2021/02/%E0%B6%B4%E0%B7%85%E0%B7%92%E0%B6%9C%E0%B7%90%E0%B6%B1%E0%B7%93%E0%B6%B8%E0%B7%8A-%E0%B6%9A%E0%B7%9C%E0%B6%B8%E0%B7%92%E0%B7%83%E0%B6%B8%E0%B7%9A-%E0%B6%85%E0%B6%BB%E0%B7%94%E0%B6%B8-%E0%B6%B4/?fbclid=IwAR3E2ZhhoTJASURdPRD_Yq_tngizfSn3UGEpUa_4ODZsAN3hzqvQD4HOHvw
[9] (1) Prime Minister Ranil WIckremasinghe (Chairman), (2) Minister Mangala Samaraweera, (3) Minister Patali Champika Ranawaka, (4) Minister Rauf Hakeem, (4) Leader of the Democratic Party Sarath Fonseka, (5) Leader of the Tamil National Alliance R. Sambandan, (6) M. A. Sumanthiran MP, (7) Leader of Janatha Vimukthi Peramuna Aruna Kumara Dissanayaka, (8) J.C. Weliamuna, Attorney-at-Law, (9) Dr. Jayampathi Wickramaratne, (10) Malik Samarawikrema, (11) Ananda Wijayapala, (12) SSP Shani Abeywikrema, (13) ASP Premashantha, (14) IP Nihal Amarasiri, (16) W.J.C. Sujatha Kumari, (17) C.I.Weerasena, (18) Thusith Mudalige, (19) Lal Nanayakkara, (20) Anusha Kumaraswami, (21)Dinesh Perera and (22) Former Secretary to the Prime Minister Saman Ekanayake.
[10] Extra Ordinary Gazette No. 2212/53 (29 January 2021) http://www.documents.gov.lk/files/egz/2021/1/2212-53_E.pdf
[11] http://www.dailynews.lk/2020/12/09/local/235619/pcoi-report-political-victimisation-handed-over-president
[12] Section 8 of the Special Presidential Commission of Inquiry Law of 1978.
[13] Section 9 of the Special Presidential Commission of Inquiry Law of 1978.
[14] Article 157A(12) of the Sri Lankan Constitution states that ‘civic rights’ includes right to hold a passport, right to own any immovable property and right to engage in any trade or profession which requires a licence, registration or other authorization.
Annex:SriLanka Briefing Note April 2021 Annex of 50 decisions of the CoI