Columns

Juvenal’s beautifully scornful castigation of the people being diverted by ‘bread and circuses’ (panem et circenses), has a specific application in the present day. That cynical tactic served the Roman emperors well in turning the attention of bored plebians away from pressing national issues and civic duties.

Catching the gleeful imagination of the public
Sri Lanka has had its fair share of diversions through the decades since we embarked on our less than distinguished expedition of gaining independence from colonial rulers and keeping a proud national identity intact. In recent times and under former President Mahinda Rajapaksa, we had gleaming expressways snaking through the country and the sprucing up of Colombo to distract from abominable robberies of the public purse.

Now, the ‘yahapalanaya’ Sirisena-Wickremesinghe unity alliance has none too dubious ‘achievements’ all of its own. At the core is the Central Bank of Sri Lanka (CBSL) bond issuance allegedly profiting Arjun Aloysius, principal shareholder and director of Perpetual Treasuries (Pvt) Ltd and the son-in-law of Arjuna Mahendran, former Governor of the Central Bank who was the handpicked choice of Prime Minister Ranil Wickremesinghe.

On its own part, the Commission of Inquiry inquiring into the CBSL bond issuance has certainly caught the gleeful imagination of a bored and cynical public after a very long time. The happenings coming to light before the Commission have all the hallmarks of a classic thriller. This week, we are beguiled with tempting references to shadowy characters codenamed ‘Wolverine’, ‘Little Jhonnie’, Tango’ and ‘Charlie’ and allegations of money being paid to them under the table by Perpetual Treasuries Limited. Fresh controversies ignite each day.

Remarkable contradictions at play
But as has been said before in these column spaces and deserves repetition, if serious political will existed to punish those responsible for this a Commission of Inquiry is not the answer. It is the criminal justice process that should have been activated. But yet it was not.

Moreover, there is a remarkable contradiction at play here. The Attorney General’s Department which is most often than not, in the direct line of fire regarding ineffective prosecutorial practice appear to be distinguished in a different sense here. Its team exhibits a marked proclivity to go after its quarry, aiming for the jugular as it were, even to the extent of resorting to sensational exhibitionism.

This includes reportedly refusing to cross examine senior Ministers and powerbrokers of the United National Party (UNP), summoned by the Commission for a ‘quickie’ session where they used the opportunity to plead fresh-eyed innocence of any wrong doing.

Giving rise to cynicism
All this would give rise to cynicism in the most optimistic of minds. Our history is illustrative of the same. It is artfully sought to argue that Sri Lanka’s Commissions of Inquiry went wrong in the past due to the faults of those Commissions. The logic is therefore that, if a particular Commission functioned perfectly,, we would have had a different result.

In some few instances, this allegation may be true. For example, the Commissions established by (the late) Presidents R Premadasa and DB Wijetunge during 1991-1993 to inquire into killings and disappearances of suspected Sinhalese militants during the UNP terror era were demonstrably problematic. Their reports have not been published to-date. Again, the 2001 Presidential Truth Commission on Ethnic Violence constituted by former president Chandrika Kumaranatunge headed by a retired Chief Justice of Sri Lanka was a bad example of a ‘Truth’ Commission.

But even where past Commissions exerted their might and main to bring injustices to light, their efforts have been futile. Kumaranatunge’s 1994 Disappearances Commissions Reports is a case in point. Despite impractical time limits, insufficient resources and other logistical problems the Commissions resisted political pressure. Inquiring into the abuses suffered by citizens of majority and minority ethnicity alike, they presented impressively detailed and soberly reasoned recommendations.

Good recommendations by COIs ignored
The Commissions reiterated the need for an Independent Human Rights Prosecutor to be established as an institution similar to the Commissioner of Elections and the Auditor General with funds provided by Parliament. Significant changes were recommended to the law relating to the burden of proof. Superior officers were recommended to be held criminally liable for violations committed by subordinates under their command in appropriate instances.

The establishing of legal aid services and citizens’ assistance bureaus specifically to deal with gross abuses was advocated. But virtually all these recommendations were ignored. If changes in practice and policy had taken place, the misery that people had to go through in later decades of chaotic conflict may well have lessened.
And with all their considerable warts, the more recent Udalagama Commission of Inquiry and the Lessons Learnt and Reconciliation (LLRC) Commission also suffered similar fates. Some excellent recommendations should have been given effect to. Instead, they were disregarded.

Diverting attention away from reform of the criminal justice system
Whether they have been appointed to look into mega corruption or probe gross human rights abuses, Commissions of Inquiry in this country have failed due to rulers shrugging away the accountability of the State. We are yet to see Commissions exhibiting a powerful and potent force as a deterrent to abuse. Absent political will to bring the full force of the law against the perpetrators, ad hoc amendments to the law are of no use. Thus the 2008 amendment to the 1948 Act empowering the Attorney General to indict on the findings of Commissions of Inquiry made very little difference to the status quo.

And in any event, the criminal justice system is where the focus of law reform ought to be directed. Yet another report of a committee on law reform and ‘speedy criminal justice’ was presented to President Maithripala Sirisena this week. These are manifestly silly exercises. The precise points at which the criminal justice system must be corrected have already been dealt with more than a decade ago in the 2004 Committee Report on the Eradication of Laws Delays commissioned by the Government at the time. The excellent recommendations in that report in relation to structural reforms in the police, the Departments of the Attorney General and the Auditor General still remain unimplemented. That by itself is telling.

Suffice to say in the final result that these ‘bread and circuses’ exercises do not suffice to bring about justice for the wronged. That much is certain. At a certain point, public cynicism can only grow exponentially as the people witness the law being flouted with impunity. This is exactly what happened to the Rajapaksas. That can only be bad news for the unity Government struggling with its manifold dilemmas.