Columns

• Govt. wants to withdraw several cases on grounds of “political Victimisation” and punish complainants
• Political Victimisation Commission recommends strong action against Yahapalana Govt. leaders for taking political revenge
• Defence Secretary proscribes seven Diaspora Tamil groups and names 424 people as having links with terrorism; move seen as a blow to reconciliation efforts

AT THE PARK LANE HILTON IN MARCH 2015 – The then President Maithripala Sirisena with a delegation from the Global Tamil Forum (GTF). Seated on his left is Suren Surendiran, now GTF spokesperson. On his right is Father S.J. Emmanuel and seated next to him is the then Foreign Minister, Mangala Samaraweera.

The strong thrust of this multi-pronged exercise, now taking shape, is local.  It is to call a halt to cases pending in courts over alleged bribery, corruption, or other improprieties against some in the ruling alliance or their backers. This is on the grounds that the cases were “politically motivated.” The controversial move is based on the findings of a Commission of Inquiry which probed alleged instances of “political victimisation” and made recommendations to “redress the situation.”

The fact that there were strong political undertones in a few of the investigations at that time is no secret. Nor was it a secret that some top leaders of the yahapalana government also interfered with the investigators regularly seeking to play down cases against persons whom they had close connections with or to accelerate the cases of others. One such instance was when a top leader telephoned President Maithripala Sirisena, when he was in London in March 2015 to attend the Commonwealth Summit, to caution him against an ‘uncontrollable situation’ that would arise if a particular person was arrested. He ordered a halt to the move. Then Ministers Rajitha Senaratne and Champika Ranawaka raised issue at weekly ministerial meetings over a then UNP minister who was also openly espousing the cases of much less than a handful of persons. A UNP Justice Minister boasted how he had saved “the Rajapaksas.” There were many a deal and many a compromise then. These could easily make a chapter for Ripley’s Believe it or Not. That the yahapalana government was voted to power in 2015 on the pledges it made to deal with bribery, corruption and other irregularities is all too well known. Also too well known is that the Yahapalana government was voted out of office because it failed. The UNP was swept off the country’s electoral map, bagging a mere two percent of the votes at the August 2020 parliamentary elections.

Now, the Parliament Order Book for April 21 lists a motion for the withdrawal of cases before courts. Expert legal advice obtained by ruling alliance leaders from the private bar points out that a person or body could not change the actions already initiated by the Attorney General, the state prosecutor.  They have learnt that it would also lead to far reaching consequences. Other issues pointed out to the leaders are far too sensitive to elaborate upon. Yet, the move seeks to call upon the Attorney General to withdraw a set of listed cases. The only known response from the main opposition Samagi Jana Balavegaya (SJB) is a claim that it would appeal to the Supreme Court. However, no move has yet been initiated. Last week, SJB leader Sajith Premadasa was speaking about contaminated coconut oil.

Of course, SJB leaders’ concerns on fears of losing their civic rights — a matter over which Premadasa even met with UNP leader Ranil Wickremesinghe — has now receded. The government does not want to pursue this aspect but wants to punish those who made complaints that led to the cases in question.

First to the full text of the motion: “The Prime Minister and Minister of Finance, Minister of Buddhasasana, Religious & Cultural Affairs and Minister of Urban Development & Housing,— Implementation of Decisions and Recommendations of the Presidential Commission of Inquiry to Investigate and Inquire into and obtain information in relation to alleged political victimizations of Public Officers, Employees of Public Corporations, and Members of Armed Forces and Police Service, who were holding posts during the period commencing from 08th January 2015 and ending on 16th November 2019,—

“Approval of the Cabinet of Ministers has been granted with regard to the matters mentioned below, as per the Cabinet Decision /21/01 05/301/003 and dated 15.02.2021 referred to the Cabinet Memorandum dated 15.01.2021 submitted to the Cabinet of Ministers by H.E. the President regarding the above matter:—

(a) To submit the Final Report of the Presidential Commission of Inquiry

(Contained in the First, Second and Third Volumes and the Addendum  correcting the typographical and printing errors of the said report) through a Resolution in Parliament;

(b) To implement of the decisions and recommendations made by the said

Commission in relation to the Anti-Corruption Committee referred to in Item No. 08 of the First Volume of the said Final Report;

(c) To make arrangements for the appointment of a Special Presidential

Commission of Inquiry or for the creation of any other appropriate mechanism as determined by Parliament for the implementation of the decision No. 1 and recommendation No. 1 of the said Item No. 08;

(d)  To refer the decisions and recommendations made by the above

Presidential Commission of Inquiry pertaining to Item No. 08 and to the complaints from I to LXI in Item No. 09 in the First, Second and  Third Volumes and the Addendum correcting typographical and printing errors in the said Final Report, to the relevant authorities, including the Commission to Investigate Allegations of Bribery or Corruption, the Public Service Commission, the Inspector General of  Police, the Minister in-charge of the relevant Ministries and the Secretaries to the Ministries, for implementation; and

(e)   To implement the decisions and recommendations made by the said

       Presidential Commission of Inquiry, pertaining to the complaints referred to under Item No. 10 in the Third Volume of the said Final Report.

“Accordingly, since a Special Presidential Commission of Inquiry has been appointed by H.E. the President through the Extraordinary Gazette Notification No. 2221/54 and 01.04.2021 as mentioned in (c) above; subject to consideration on the implementation of the decisions and recommendations of Item No. 08 contained in the Final Report of the Presidential Commission of Inquiry mentioned in the aforesaid Cabinet Decision, after receiving the report of the Special Presidential Commission of Inquiry, that this Parliament resolves that the decisions and recommendations mentioned in the Item No. 09 and 10, omitting Item No. 08, in the said Final Report of the Presidential Commission of Inquiry (Containing the First, Second and Third Volume and the Addendum correcting the typographical and printing errors) which obtained information on the political victimizations mentioned in those Cabinet Decisions, be implemented as mentioned in (d) and (e) above.”

Motion in layman’s term

The wording of the motion, as is clear, is technical and tends to be confusing to the average person in the light of its legalistic formulation. In laymen’s terms, the gravamen of its contents is to legally withdraw many cases pending for which the Cabinet of Ministers has given approval in January, this year. There is, however, an exception in respect of one provision – Item 8. Through this, the motion refers to the setting up of the Anti-Corruption Committee (ACC) and the Anti-Corruption Committee Secretariat (ACCS) by the previous yahapalana government. This is where some yahapalana leaders conceded before the Commission that the setting up of the two bodies was illegal. That admission was damning since they did not think it fit to legislate for it when they were in power. Why? This is despite Police teams being sent to the United Kingdom to learn from its Serious Frauds Office so a similar body could be set up in Sri Lanka.

They were established on a Cabinet Memorandum forwarded by then Prime Minister Ranil Wickremesinghe on June 2, 2015, at a ministerial meeting chaired by the then President Maithripala Sirisena. He reasoned that, “it was to investigate the large-scale corruption and fraudulent activities that prevailed during the previous regime, initiate legal action against those responsible  for same, and recommend measures to be adopted to prevent such occurrences in the future,” A sum of Rs 7.5 million he sought for the use of the Secretariat was then approved by the Cabinet. The Commission said more than Rs 33 million had been spent altogether. On February 12, 2015, the then Cabinet Secretary Sumith Abeysinghe faxed to former Inspector General of Police, N.K. Illangakoon a letter informing him of the decision of the ministers “for the establishment of a Division to Investigate Matters relating to Serious Financial Crimes, Public Funds and Property.” He signed a Gazette notification on February 13, 2015 establishing a “new Police Division in the Department of Police – Sri Lanka.” It came to be known as the Financial Crimes Investigation Division (FCID).

By 2017, the functioning of the Anti-Corruption Committee Secretariat (ACCS) had become so unwieldy with political interference at various levels. Documents before it were circulated like bus tickets. It was also riddled with institutional problems. There were complaints that persons who held large amounts of money in banks were hassled. Some parted with a part. Then Premier Wickremesinghe sent in a “confidential” cabinet note dated June 30, 2017. He observed, “Now that the Financial Crimes Investigation Division (FCID) is fully functional, a decision has to be taken on whether the future operations of the ACCS be continued or not.” He said he was submitting the note “for an appropriate decision by the Cabinet of Ministers.” This came at a time when the ACCS itself became the subject of serious accusations of large-scale bribery and corruption. It was decided to shut down the ACCS, but the FCID continued to function until its tasks were assigned to the Criminal Investigation Department (CID) by the ruling alliance.

In its final report, the Commission headed by retired Supreme Court Judge, Upali Abeyratne held that in establishing the Anti-Corruption Committee (ACC) and the Anti-Corruption Committee Secretariat (ACCS), that 22 persons including former Premier Wickremesinghe, MPs from the then (yahapalana) government and opposition, as well as senior Police officers and government officials, “have violated the Constitution and misused public property.” Other members of the Commission were Court of Appeal’s retired Judge Daya Chandrasiri Jayatithilake and onetime Police Chief, Chandra Fernando.

Besides the then Premier Wickremesinghe, others named by the Commission for  “violating the Constitution and misusing public property” are:  former Ministers Mangala Samaraweera, Patali Champika Ranawaka, Rauff Hakeem, Malik Samarawickrema and Sarath Fonseka, Tamil National Alliance (TNA) Leader R. Sampanthan, TNA Parliamentarian M.A. Sumanthiran, Janatha Vimukthi Peramuna (JVP) Leader Anura Kumara Dissanayake, Attorney-at-Law J.C. Weliamuna, former MP Dr Jayampathi Wickramaratne, the Criminal Investigation Department’s former Director Shani Abeysekara and former Prime Minister’s Secretary Saman Ekanayake.” It is noteworthy that the name of another leading politician who took part in meetings has not surfaced though it appeared even in the minutes of ACC meetings.

The Commission had also noted that the then Prime Minister Wickremesinghe and members of the Cabinet had “violated their oath to protect and defend the Constitution” through their actions to establish the Financial Crimes Investigation Division (FCID) and “also by having political opponents arrested and detained on false charges under the Prevention of Terrorism Act (PTA).”

The Commission has noted in its report that there is no Constitutional Court to hand down punishments for violations of the Constitution and, therefore, recommended the setting up of another Special Presidential Commission of Inquiry to make recommendations to Parliament on the punishments that should be meted out to them. In the light of this, the motion before Parliament omits all references to item 8. In fact, a Special Presidential Commission of Inquiry was appointed by President Gotabaya Rajapaksa for this purpose. The three members are Priyantha Jayawardena, Judge of the Supreme Court, Khema Kumudini Wickremasinghe, Judge of the Supreme Court and R.M. Sobhitha Rajakaruna Judge of the Court of Appeal. Their findings are not known.

However, the motion calls upon Parliament to resolve to implement decisions and recommendations mentioned in the Item No. 09 and 10. Item No. 09 includes decisions and recommendations connected to 61 complaints mentioned by 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.

Those who will be benefiting from the motion

Among cases the Commission has recommended be withdrawn is the case filed against former Navy Commander, Admiral of the Fleet  Wasantha Karannagoda and senior Sri Lanka Navy officers over the alleged abduction and disappearance of 11 students. Others who will see an end to judicial proceedings filed against them include Basil Rajapaksa, Yoshitha Rajapaksa, Udaya Gammanpila, Rohan Welivita, Nalaka Godahewa, Jaliya Wickramasooriya, Nissanka Senadhipathi, Rohitha Bogollagama and Udayanga Weeratunga. The Commission has also recommended that those who it has deemed had been politically victimized be compensated, reinstated in their former posts, and given promotions that had been deprived to them.

Ahead of the motion becoming known, a meeting of party leaders in Parliament on April 8 turned out to be a hotly contested session lasting more than an hour.  It was over a possible debate called for by opposition parties on the report of the Commission that probed political victimisation. This was at a meeting chaired by Speaker Mahinda Yapa Abeywardena in Parliament. However, government members were of the view that the debate on the Commission that probed the Easter Sunday incidents should be continued. It was noted that some 108 MPs have not spoken so far. Those who insisted were SJB leader Sajith Premadasa, Abraham Sumanthiran TNA, Anura Kumara Dissanayake, JVP leader and Lakshman Kiriella, SJB. A debate is being allowed on April 19, 20 and 21. Here again, whether this could change in the light of the new developments remains a question.

President Gotabaya Rajapaksa submitted a cabinet memorandum on January 15, 2021 to implement decisions and recommendations of the Presidential Commission of Inquiry to investigate and inquire into and obtain information in relation to alleged victimizations of public officers, employees of public corporations and members of armed forces and police service who were holding posts between January 8, 2015 and November 16, 2019.

President Rajapaksa set out the background and the justification in submitting the cabinet proposal for approval. He noted that it has been reported that with the change of the government in 2015, state officials, public servants and employees holding positions prior to the 2015 presidential elections and war heroes including political leaders “were subjected to severe political victimization at the behest of local political opponents and in the interest of pro international terrorist organizations.”

“It has been reported that the Good Governance Government which came into power in January 2015, in order to carry out this process of political revenge had moved to set up two unofficial political institutions called “National Executive Council” and “Anti-corruption Committee” through “Financial Crime Investigations Bureau”, an unofficial Police division , and had made arrangements to forward the alleged complaints to those two institutions for the purpose of taking political revenge and had imposed unwarranted punishments by remanding political leaders, state officials, Army personnel and civilians”, the cabinet memorandum noted.

The President, in justifying the decision, said that he had appointed a Commission of Inquiry consisting of three members giving directions to inquire into and investigate the complaints made by persons who were subjected to political victimization alleged to have been done between January 8, 2015 and November 16, 2019.

The cabinet paper cites the cases the Commission of Inquiry has recommended that relief should be granted.

Some of the cases listed in his 34-page Cabinet Memorandum together with the approval he sought and obtained are:

• The indictment of Lt Col H.M.P. Chandana Kumara Hettiarachchi in the Colombo High Courts and the charges filed in the Magistrate courts Colombo should be withdrawn and he should be acquitted and discharged.
• The indictment of Navy intelligence officer Gamini Seneviratne filed in the High Court Trial at bar in Colombo and the Colombo Magistrate courts should be withdrawn and he should be acquitted of the charges.
• The indictment of intelligence officer Pradeep Chaminda in the Colombo High Court and the charges filed in the MC Colombo should be withdrawn  and acquitted.
• The indictment of Yoshitha Rajapaksa filed in the Colombo High Court should be withdrawn and he should be acquitted of the charges filed in the Kaduwela Magistrate courts.
• The indictment filed against Udaya Gammanpila at the Colombo High Court and the charges filed in the Fort Magistrate courts should be withdrawn and he should be acquitted.
• The indictment filed against Nalaka Godahewa at the Colombo High Court and the charges filed in the Colombo Magistrate courts be withdrawn and he should be acquitted.
• The indictment filed against Nissanka Senadhipathi in the Colombo High Court and the charges filed in the Galle Magistrate courts be withdrawn and he should be acquitted.
• Charges against Udayanga Weeratunga on allegations of financial malpractices in the purchase of MiG-27 aircraft for the Sri Lanka Air Force (SLAF) filed in the Fort Magistrate courts: it is recommended that that the Attorney General informs the courts that he would not proceed in the case.  The AG should also request that the court lifts the suspension on Weeratunga’s bank accounts. The container of goods held back should also be released.
• The judgment delivered against Duminda Silva by the Colombo High Court (case no HC 8331/16): the  Attorney General should appeal to the Supreme Court for a judicial review and he should be acquitted of the charges filed in Colombo High Court in respect of case No HC 7781/15.
• The indictment of Admiral of the Fleet Wasantha Karannagoda in the High Court Trial at Bar and the charges filed in Fort Magistrate courts should be withdrawn and he should be acquitted.
• Commander Sumith Ranasinghe should be acquitted of the charges filed against him in the Fort Magistrate courts.
• The indictment against Rear Admiral D.K.P. Dassanayake filed in the Colombo High Court Trial at bar and the charges filed in the Fort Magistrate courts should be withdrawn and he should be acquitted.
• Sivanesathurai Chandrakanthan alias Pilliyan should be acquitted of the charges filed in the Batticaloa High Courts and Batticaloa Magistrate courts by withdrawing the indictment and charges filed against him.

It is pertinent to note that some of the cases referred to above, have been raised either directly or indirectly, in the UN Human Rights Council leading to the adoption of the resolution on Sri Lanka over accountability issues. Thus, the likelihood of international responses to the government’s moves cannot be ruled out.

As repeatedly pointed out in these columns, with the presence of a lacklustre opposition, there is little doubt that the government motion would be carried through in Parliament and implemented. This is over a matter which threatens judicial independence and the very basis of a judicial system. Perhaps the only recourse the public could look forward now to will be the courts.

Why the proscription?

On the foreign front, whilst the UN Human Rights Council had been deliberating on a resolution dealing with accountability issues, since February, the Ministry of Defence had been preparing a list of Tamil diaspora groups. Just two days after the resolution was adopted on March 23, Defence Secretary retired General Kamal Gunaratne issued a Gazette notification. That in effect proscribed seven overseas Tamil organisations and named 424 individuals living in different parts of the world. The action was on the grounds that these bodies and individuals were involved in “terrorism.” The proscription notwithstanding, since they are located overseas, whatever actions they are engaged in, cannot be stalled. The only impact would be their inability to visit Sri Lanka, a chance which they did not risk even earlier. Even in the countries in the west where the Liberation Tigers of Tamil Eelam (LTTE) is banned, members of the rump have freedom of movement and their propaganda activities continue. So why the proscription?

It is clearly a strike back, at least against a few of these groups, which have played a continually active role in the events leading up to the resolution on Sri Lanka at the UN Human Rights Council. The measure could be biting only for a few groups and individuals named. This is because the proclamation came under the United Nations Act No 45 of 1968. This legislation is based on a UN Security Council resolution which empowered member countries to proscribe entities for being engaged in terrorism. Sixteen organisations and individuals were proscribed in 2016 but the previous yahapalana government did away with it. In the light of the new move, they could be stopped at entry or exit points to some countries. Here again, the question is how many of them travel now? In the light of COVID-19 pandemic, they resort to the next best option – virtual reality.

Among the more known organisations are the United Kingdom based Global Tamil Forum (GTF), British Tamil Forum (BTF), Canadian Tamil Congress (CTC), National Council of Canadian Tamils (NCCT), Tamil Youth Organisation (TYO) operating from Australia, Canada, Switzerland, France and the UK, and the  Australian Tamil Congress (ATC).

The United States reacted to the government move this week. The State Department tweeted “Diaspora communities are our valued partners in helping us stay connected to the region. We continue to engage with various South Asian diaspora groups, including members from Sri Lanka and welcome an ongoing conversation…”  Some Tamil media outlets and websites claimed this amounted to the US not recognising the government’s proscription order. However, a diplomatic source explained, “the comments came as those in the State Department under the Biden-Harris administration were now broadly engaging various parties to determine their foreign policy initiatives.”

Nevertheless, one need hardly point out that there is no terrorist activity worthy of mention since the military defeat of Tiger guerrillas in May 2009, though their rump, mostly overseas, remains. That too does not, in any way, extend to the possibility of their taking to arms. Even in this very highly unlikely event, the military is well prepared and advanced to meet an internal threat of any proportion. The military has made up for the weaknesses, loss of morale and an emaciated intelligence system caused by the crass insensitivity of the previous yahapalana leadership.

To the contrary, these groups, with cash in hand, are bent more to pressure the government in power to win what they call justice. This is why they are campaigning for the main elements in the resolution on Sri Lanka. Yet, with the proscription of these groups and listing those individuals for links with terrorism, the government has dealt itself a massive blow when it comes to reconciliation — one of the key elements in the resolution. The funds they have will be poured more for activity against the government. A reasonable dialogue on reconciliation would have seen those funds being pumped into Sri Lanka for development.

It is no secret that a few of the Tamil groups now proscribed for “terrorism” were very much at the forefront of reconciliation efforts during the early part of the yahapalana government. They talked not only to those in the Tamil National Alliance (TNA) but also to these groups. One such occasion was when a delegation led by Suren Surendiran of the Global Tamil Forum (GTF) — now proscribed — led a small group for a meeting with the then President Sirisena at the Hilton in Park Lane. The goodwill was so great, they even took a dinner of string hoppers, kiri hodi, and pol sambol for Sirisena and his entourage. He was thrilled. Also present was then Foreign Minister Mangala Samaraweera. They talked passionately about resolving the issues before them through dialogue. That did not go far.

This naturally raises the question of what the government’s approach towards reconciliation would be. More so, with a new Constitution for Sri Lanka in the offing. Even if the government were to talk to Tamil National Alliance (TNA), which has the single largest majority Tamil representation in Parliament, it would inevitably need the help of the groups that are now proscribed. They bring in the funds. Any formal dialogue by the TNA and their foreign allies would expose it to the threat of dealing with banned ‘terrorist’ groups or ‘their representatives.’ Would this mean talk with others on the fringe or those within the government help? The government has created a dilemma for itself on matters related to reconciliation. The proscription is meaningless. Even the money that the diaspora send to their next of kin, mainly in the north and east, will now go via a hawala system with no revenue to the state.

This week also saw the government utilising provisions of the Prevention of Terrorism Act (PTA) to set up Rehabilitation Centres. This is an alternative to instituting criminal action against persons who are now in custody. They include those who were arrested after the Easter Sunday attacks. According to a Gazette notification, any commission of acts of violence or religious, racial or communal disharmony or feeling of ill will or hostility between different communities or racial or religious groups will be dealt with according to these regulations. Just days earlier, the government banned a string of Muslim groups in keeping with the recommendations of the Commission of Inquiry that probed the Easter Sunday attacks. With just two days to go for the ultimatum by the Archbishop of Colombo, Malcolm Cardinal Ranjith, of launching protests, it will be a suspenseful post-National New Year week.

The ruling alliance, as is clear from the most recent developments, has burdened itself with more issues which it has generated. This is on top of those severely affecting the public like the rising cost of living. Sri Lankans are in for more challenging times.