Columns

If the fury and the force of the past months is what Sri Lankan citizens had to face in an ordinarily pedestrian local government election, the imagination fails quite splendidly as to what the future portends with provincial and national elections scheduled to be held in the relatively near future.

The voter is the worst loser
Amidst that wretched election rhetoric, one fact is clear. Irrespective of who wins or who loses on the 10th of February from among the competing actors jostling on the political stage, the voter (it seems) has already lost a significant portion of the promised gains of 2015, bar the shouting. Yet were those promises a mirage at the very time that they glistened so brightly?

This is a question that surfaces in terms of fundamental governing imperatives. To be clear, this is also a question that is quite distinct from defensive positions taken by some when they say that Sri Lankans are better off in terms of their civil liberties than they were three years ago. The truth of that assertion is without a doubt.

But it is also the truth that systemic Rule of Law failures did not start with the Rajapaksas. Rather, much of that predated Rajapaksa rule with the best example being the fact that the precipitation of Sri Lanka’s Supreme Court into one unpleasant political controversy over another became a matter of international scrutiny during the Kumaratunga Presidency.

From that point, it was a small step to the summary impeachment of a Chief Justice by the Rajapaksa Presidency and an even smaller step to the executive dismissal of the successor to that Chief Justice who was deemed ‘never to have been’ under the Sirisena Presidency while the Bar clapped. Now we have the ultimate irony of that Chief Justice ‘who never was’, along with a sitting Court of Appeal judge being slapped with corruption charges in the Magistrates Court. And the Bar, (in a vastly different avatar of course), splutters in protest over the same.

Prejudging actions of CIABOC
Indeed its recent statement that the institution of criminal proceedings ‘on the basis of professional advice given by them in their former capacities as the Attorney General and Deputy Solicitor General affects the independence of Judiciary, Rule of Law and the interests of the public at large” invites the appearance of prejudging the matter. As at this date, the Bribery and Corruption Commission (CIABOC) which filed these charges in the Magistrate’s Court has yet not entered upon an elucidation of the same. No doubt, this would be forthcoming in the months ahead in the judicial forum. Until then, it would be opportune to hesitate before rushing into conclusions as to the basis on which the charges rest.

From the standpoint of a critical observer, these responses by the legal profession in 2015 and 2018 attract equally critical scrutiny. As some may rightly say, both illustrate profound dilemmas of justice that Sri Lanka faces as a result of crude politicization of the profession even though lofty language is resorted to in order to hide less than lofty motives. That was the same in 2015, (let us admit that undoubtedly inconvenient truth), as it is now.

A few weeks ago, it was observed in these column spaces that the utilization of Section 70 of the Bribery Act (as amended) by the Bribery and Corruption Commission in this regard was salutary after this provision had been allowed to be dormant for decades following the amendments in 1994. However it was also pointed out that penal charges call for evidentiary material that go beyond claims of the improper use of discretion in wielding statutory powers.

The occurrence of strange things in the past
That said, it must also not be forgotten that this country has seen strange things happening including at one point when the Attorney General lodged an appeal with the Colombo High Court in 2009 to withdraw an indictment on purportedly ‘sympathetic’ grounds, filed against a principal of a leading Colombo school who had been charged with allegedly preparing forged documents and misleading the Criminal Investigation Department (CID) over a school admission. The Court was informed that the accused had regretted his conduct and had accepted a transfer to another school. Further, judicial clemency was pleaded on the basis that several citizens had written to the Attorney General requesting that mercy be shown to the accused based on the good services that he had rendered to the country. In that specific case, the judge rightly refused to accede to the application of the Attorney General.

In these circumstances, the propriety of the Attorney General came in for severe critique. Indeed, troubling patterns were demonstrated in regard to substantial decisions to file indictment or, (in the alternative), refuse to file indictment in cases where the law and the investigative material called for a contrary course of action. These matters remain therefore of clear public interest, quite apart from the use of the Bribery Act in the instant context which has been objected to by the Bar. In fact, it would have been good if a reference had been made in that sanctimonious statement issued by the Bar to the crucial importance of the independence of the foremost state law officer rather than indulge in sweeping generalisations.

In other jurisdictions, it is interesting to note that English judges have opined that the court would dismiss the charge in criminal matters if the applicant is able to show that the Attorney General or any of the police officers is found to have abused the process of court or had acted in an oppressive manner towards the applicant. Again, in Israel, the judges have gone further in this regard. The Court has set aside prosecutorial decisions tainted by improper motives, arbitrariness, discrimination and where there was a material or grave distortion of reason.

Structural reforms needed
Taking these issues out of the heat of political aggravations, structural reforms pertaining to the exercise of powers of the Attorney General may be urged as appropriate. In Canada, for example, expert committees have been set up to lay down guidelines for the exercise of prosecutorial discretion. In addition, some African jurisdictions are increasingly emphasizing the political neutrality of the office as well as the need to ensure judicial oversight of the powers of the Attorney General in appropriate circumstances.
In the meantime, it may befit the Bar to abstain from ‘appearing to prejudge’ the actions of CIABOC in warning of stern consequences that would follow if their cautions are not adhered to. Adding a rider that this intervention is not meant as an obstruction or interference with the course of justice or the right of law enforcement institutions to carry out their functions’ is merely a sop. That much must be said.