Columns

The start of Sri Lanka’s new Government this week could not have been more inauspicious by the stretch of even the most optimistic imagination.

In conflict with the Rule of Law
Speaking at the swearing in of a colossal and shamefully male dominated Cabinet a few days ago, President Maithripala Sirisena promised that the guiding principles of his administration would be ‘good governance, corruption free development and restoration of the Rule of Law.’

Yet this injunction was offensively contradicted by the selection of pro-Rajapaksa ‘unworthies’ as Ministers including a provincial politician with an established reputation for drug dealing and a parliamentarian infamous for insisting that missing journalist Prageeth Ekneligoda had sought asylum overseas. Another individual noted for his manifest unconcern for law and order had been rewarded by precisely that very deputy stewardship. Is this the new political culture that the President wishes to usher in?

Several questions arise for inquiry. It is unconceivable that President Sirisena was not aware that this would cause considerable heartburn among the public. It is not as if his party did not possess better candidates for ministerial office after all.

Exposing himself to public ire
So are we then to infer that these appointments are due to the President’s continuing attempts to exercise his sway over pro-Rajapaksa parliamentarians? If so, he plays a perilous game. Similar tactics did not suffice to turn such dissolute politicians towards him earlier. This was one reason why the shine soon rubbed off the ‘yahapalanaya’ (good governance) luster of the interim government along with the scandalous Central Bank financial scandal on the part of the interim Wickremesinghe government which, incidentally still remains unresolved. Given the slimmest possible opportunity, there is little doubt that pro-Rajapaksa Ministers will engage in the same exercise all over again.

And the President stands exposed to increased public ire if this disparity between rhetoric and action continues. It was only the possible return of the former President which re-energized the voters in August and brought back the Sirisena-Wickremesinghe combine into government. This was on the minimalist reasoning that virtually anything is better than a return of the known devil. But there is no guarantee that Rajapaksa disenchantment evidenced by a majority of the citizenry would continue. This is so particularly if the currently dysfunctional governance system continues without perceptible change.

Similarly troublesome are recent media reports showing the President’s daughter who holds no official position, touring the Polonnaruwa District with public officials trailing in her wake and even more outrageously, ‘chairing’ a meeting of officers at the District Government Agent’s Office. This is reflective of the flagrant ‘first family’ antics of the Rajapaksas. Old habits, it appears, die hard. Certainly these are good indications that public vigilance is essential if the democratic gains of the past months are not to be frittered away.

Controversy regarding the Attorney General
Against this rather oddly fraught background, weighty matters of ensuring justice and due operation of the law remain to be decided. This week, activists and the Attorney General spiritedly traded accusations in the public forum.

In specific issue were the concluding of the Avant Garde case on advice tendered by the Attorney General’s Department and the stand of the Department in the writ application filed in respect of onetime chief procurer of the Liberation Tigers of Tamil Eelam, Kumaran Pathmanathan. Activists alleged that these cases did not proceed further due to prosecutorial lapses and inaction.

The Attorney General’s response was that in the Avant Garde case, the Department had acted on the evidence made available by the Criminal Investigation Department (CID) which did not disclose offences under the Firearms Ordinance, Explosives Act or the Prevention of Terrorism Act. In Pathmanathan’s matter, it was clarified that state lawyers had only reported to court that police investigations into some incidents had not disclosed Pathmanathan’s involvement but investigations were ongoing in respect of the remainder.

Prosecutorial actions and public suspicion
Amidst this bristling controversy, an affirmation was then issued by the Association of Legal Officers of the Department referring to its ’130 year old history’ and requesting to be allowed to work ‘within the four corners of the law.’ The statement gingerly (and interestingly) conceded that ‘recommendations contained in a preliminary report of an officer…may not always accord with the ultimate decision’ but which was always ‘carefully considered.’

The specifics of the cases merit scrutiny elsewhere than in this limited column space. It needs to be said however that we have just seen the end of a Rajapaksa decade where a discomfiting number of prosecutorial decisions were patently not within the ‘four corners of the law. This undeniable fact must surely be acknowledged. This is what has led to extreme public suspicion, not unjustifiably.

In that context, clear and reasonable explanations will suffice to defend a legal position (when defensible) rather than empty flourishes that are belied by past failures to ensure even-handed treatment of the law. In any event, enraged activists may also benefit from the fact that on domestic and comparative jurisprudence, prosecutorial discretion of the Attorney General is subject to challenge in the superior courts, though admittedly within a narrow compass of review.

The blame game should cease
This week, fragments of the United Nations Human Rights Council mandated report on Sri Lanka were reported. That hoary old recommendation on establishing the Office of a Special Prosecutor for abuses committed during war times is apparently part of the package to fend off an international judicial inquiry arising from the report on Sri Lanka mandated by the United Nations Human Rights Council.

But would this be actually effective in a context where the integrity of the judicial function and the prosecutorial function remains seriously compromised? This week also, the Attorney General informed the court that a witness in the Wasim Thajudeen case had been threatened. But the public deserves also to know as to what further action had been taken. To what extent can the Witness Protection law which is now in force be utilized? This terrible practice of one state agency blaming the other and all metaphorically wringing their hands should cease at least now.
These are matters that await anxious public consideration.