| Jan 20, 2023
On 21 April 2019, Easter Sunday, the National Thowheeth Jamath, an Islamist militant group, carried out a series of attacks targeting churches and hotels in Sri Lanka. A total of 269 people were killed and more than 500 were injured. From the beginning, there were accusations of negligence from the highest echelons of the political and security establishment, and a number of petitions alleging fundamental-rights violations were filed against heads of the government and intelligence services.
The Sri Lankan Supreme Court considered 12 fundamental-rights petitions and concluded that the respondents – who included former President Maithripala Sirisena, former Inspector General of Police Pujith Jayasundara, former Defence Secretary Hemasiri Fernando and former Chief of National Intelligence Sisira Mendis – did not act on intelligence received about the imminent attack with the seriousness it deserved. The court also expressed its “shock and dismay at the deplorable want of oversight and inaction that we have seen in the conduct of affairs pertaining to Security, Law and Order and Intelligence.” It is important to note that President Ranil Wickremesinghe – the prime minister at the time of the attack – was named as a defendant in all the cases but removed as a defendant in July 2022 as he holds the position of executive president and so has immunity from prosecution.
Sri Lanka’s 1978 Constitution introduced the executive presidency in a bid to facilitate the state’s agenda of expedited economic development. However, it is now broadly recognised that the concentration of executive powers in one individual and the immunities attached to the office are inimical to the constitutional balance of powers. As the Supreme Court verdict shows, the concentration of all defence-related institutions under President Sirisena hindered officials in charge of security and intelligence from carrying out their duties.
Sri Lanka’s Catholic Church, led by Cardinal Malcolm Ranjith, as well as those who campaigned for justice for the victims of the attack, hailed the verdict as a “very happy beginning” and a milestone on their road to justice. The judgement may herald the beginning of a new era in constitutional jurisprudence regarding the parameters of executive responsibility in Sri Lanka. Given that the verdict came a few months before a crucial local government election and the appointment of a new IGP, it also has implications for the country’s political trajectory. It will have devastating consequences on Sirisena’s political career and will weaken his position in his crisis-ridden party – the Sri Lanka Freedom Party (SLFP). Unfortunately, it seems Sri Lanka’s political class has learnt nothing from the devastation of the Easter Sunday attacks as it tries to use the Supreme Court verdict for political manoeuvring instead of making the necessary structural changes to prevent the recurrence of such tragedies.
Losing ground on local government elections
Sirisena was ordered to pay LKR 100 million to the victims of the attacks, and Jayasundara LKR 75 million. Other defendants, including high-ranking defence and intelligence officials, were also ordered to pay substantial compensation. These sums are to come from their personal funds. The state was asked to pay LKR 1 million each to the families of the dead and LKR 500,000 to each of those injured.
The seven-judge bench found that the “failures that eventuated in the Easter Sunday attacks and the concomitant deaths and devastations have left behind an indelible blot on the security apparatus of the Country… These events must recede into oblivion but they remind us starkly of the necessity to effect legislative, structural and administrative changes.” They concluded that Sirisena “has been lax in affording the protection and guarantees enjoined under the Constitution and other laws,” and that reasonable men would not have acted in the manner that those now asked to pay compensation did, given the enormity of the risk. Noting that the State Intelligence Service, whose director was the first to receive information on the imminent attacks, had been under Sirisena’s ministry, the court said that “it was the bounden duty of the former President Sirisena to have supervised his departments.”
It is now broadly recognised that the concentration of executive powers in one individual and the immunities attached to the office is inimical to the constitutional balance of powers.
Sri Lanka’s local government elections are slated to be held before 19 March, and the judgement is a dampener for Sirisena’s SLFP, which is attempting to make a comeback by taking advantage of the unpopularity of the ruling Sri Lanka Podujana Peramuna (SLPP). It is quite likely that the Catholic MPs of the SLFP are facing immense pressure from their constituents. The SLFP was also to enter a coalition with several breakaway factions from the SLPP, which have come together as the Nidahas Janatha Sandhanaya (NJS), or Freedom People’s Alliance. However, following the verdict, the SLFP has decided to contest alone, probably hoping that a strenuous election campaign would quell internal dissent. The move has also weakened the Nidahas Janatha Sandhanaya, as Sirisena’s SLFP was to be the largest constituent of the new grouping.
The SLFP and NJS have similar political and economic positions to those that propelled the SLPP into power in 2019 and 2022. The SLPP is no longer popular due to its direct links to Sri Lanka’s devastating economic crisis – much of the worst financial damage came under the rule of the Rajapaksa family, which heads the party. Their recent political marriage of convenience with President Wickremesinghe’s United National Party (UNP) has further diminished the SLFP’s popularity among the centre-left, nationalist voters that form its main voter base. Sirisena’s political opponents will use the verdict to undermine the SLFP, and if these attempts are successful, the SLPP might be able to neutralise a party that is capable of attracting a large number of voters that could support it instead.
Politicians using intelligence agencies and other national security institutions to further their personal agendas can be devastating.
In July 2022, Wickremesinghe’s lawyers filed an application seeking his removal from the case, citing presidential immunity. Sirisena told the court that he opposed removing Wickremesinghe’s name, and the Archbishop of Colombo also said that the court must dismiss Wickremesinghe’s application. The archbishop, through his lawyers, submitted that discharging Wickremesinghe from the proceedings would directly contravene Articles 7 and 8 of the Universal Declaration of Human Rights, which deal with equality before the law and the right to retribution. However, the Supreme Court decided that, as per Article 35(1) of the Constitution, a case cannot be maintained against a sitting president, and stated that this provision was meant to ensure that the head of state could carry out their official duties without hindrance.
Meanwhile, during the proceedings of the Presidential Commission on the Easter Sunday Attacks – appointed by Sirisena in 2019 to investigate the bombings and recommend necessary actions – several witnesses had damning evidence against Wickremesinghe. According to Chapter 24 of the commission report, the former army commander, General Krishantha De Silva, told the commission that Wickremasinghe did not accept intelligence presentations at National Security Council meetings about rising Islamist extremism, particularly in the east of the country. Prime Minister Wickremasinghe had stated: “No no that cannot happen”. However, because of his immunity, we do not know what the Supreme Court thought of Wickremesinghe’s actions.
Crackdown on protests to continue?
Sri Lanka is currently going through its worst economic crisis since Independence and implementing austerity measures in line with IMF recommendations. A few days ago, the government announced that it will reduce the size of the country’s army to 135,000 personnel by 2024, from the current cadre of 200,000. The number is to be further reduced to 100,000 by 2030. Over 300,000 Sri Lankans left the country for foreign employment in 2022 and a lot of Sri Lankans are expected to lose their jobs. There are many studies pointing to a causal relationship between structural adjustment and political instability, and it is quite likely that social unrest will spread in the coming months. To prepare, the government would naturally look for a loyalist when it is time to appoint a new police chief – especially since the army declared during the massive anti-government protests last year that it would remain neutral.
The Supreme Court not only fined Nilantha Jayawardena but also instructed the state to take appropriate disciplinary action against him for his lapses and failures in the lead-up to the attacks. Jayawardena is currently the second most senior officer of the Sri Lanka Police, behind the IGP C D Wickremeratne, and was in line to take over the top position after Wickremeratne’s retirement. Senior DIGs Priyantha Weerasooriya, Deshabandu Tennekoon and Lalith Pathinayake are the other contenders for the post. Tennekoon, the most high-profile of the trio, is closely aligned with the current administration – a recent court case has accused him of not taking steps to prevent pro-Rajapaksa supporters from attacking anti-government protestors in May 2022. Jayawardena’s disqualification could open the door for Tennekoon, who is the most likely among the contenders to follow the government’s instructions, should they come, to crack down on future anti-government protests.
Given that the verdict came a few months before a crucial local government election and the appointment of a new IGP, it also has implications for the country’s political trajectory.
If there is a lesson to be drawn from the investigations into the Easter Sunday attacks, it is that the results of politicians using intelligence agencies and other national security institutions to further their personal agendas can be devastating. For the past few decades, especially after the end of the war, the Rajapaksas used the intelligence agencies and the military to intimidate their political opponents, to influence voters and to help with election campaigns. The 2015 Yahapalanaya administration led by Sirisena and Wickremesinghe, also promoted officials to top security positions based on their political loyalties – see, for instance, the appointment of Pujith Jayasundara as the IGP. Following the constitutional coup of 2018, several senior officials and politicians were sidelined from the national security decision-making process. Prime Minister Ranil Wickremesinghe and IGP Jayasundara were not invited to the National Security Council meetings. Such political manoeuvring prevented intelligence and security officials from sharing crucial information on the imminent attacks. The current attempts to appoint a politically loyal IGP, which may leave Sri Lanka vulnerable to security threats in the future, show that lessons have not been learnt from this disaster.
Courtesy of HimalSouthAsian