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One of the first steps that President Gotabaya Rajapaksa took after he took office in November 2019, was to appoint a Presidential Commission of Inquiry (PCOI) to inquire into ‘acts of political victimisation’ committed during the tenure of the Yahapalana Government.

Retired Supreme Court Judge Upali Abeyratne, was appointed to head the Commission, which submitted its report after one year to the President. The Commission’s report has thereafter been presented to the Cabinet, which in turn has approved the implementation of the recommendations in the report.

According to news reports the PCOI has made recommendations in respect of 78 complaints. Subsequently a resolution has been presented to Parliament by the Prime Minister to give effect to the Cabinet decision.

Many of the allegations in respect of which political victimisation have been made are before the Courts while some cases have already been concluded. All these cases have been filed after intensive investigations and examination of the evidence by the Attorney General’s Department.

Where such cases have been concluded they have gone through the judicial process in the country. Any reversal of these decisions except through judicial proceedings will result in an erosion of confidence in the administration of justice and the Attorney General’s Department.

Indeed if any injustice has been caused to anyone the Sri Lankan judicial process has enough provision to address such issues.

Justice C. V. Wigneswaran has given a fitting answer to those who seek to invoke the mechanism of the Presidential Commission of Inquiry in respect of “political victimisation.”

Speaking in Parliament in the debate on the PCOI Report the former Supreme Court Judge said: “But if individuals or their attorneys-at-law felt that evidence had been manufactured against them or that they have been politically victimised they have numerous avenues open to them to vindicate their rights through the judiciary.

First, a person can raise the objections in the criminal case itself. They can invoke the jurisdiction of the Supreme Court in terms of Article 126 of the Constitution for the violation of their fundamental rights. They can invoke the writ jurisdiction of the Court of appeal in terms of Article 140. They can institute proceedings for malicious prosecution and seek damages. The powers of the Judiciary are so wide that injustice can be prevented and damages awarded. The Executive and the Legislature simply have no role to play at the individual level. Individuals must seek the assistance of the Judiciary.

The Government’s unprecedented move whereby the Legislature seeks to set aside or frustrate the process of judicial action by adopting a resolution of Parliament is unheard of in any democracy.

Not surprisingly the Government’s moves have raised alarm bells among the legal fraternity as well as human rights activists. Eleven President’s Counsels including the immediate past Bar Association of Sri Lanka (BASL) President Kalinga Indatissa and current President Saliya Pieris have expressed “serious concern” that the contents of the report of the Commission of Inquiry (CoI) into Political Victimisation may “undermine the rule of law in this country, impair independence of the judiciary and erode impartial and efficient functioning of the Attorney General’s Department.”

In a letter to the BASL Secretary in early March 2021, they have urged the BASL Secretary to obtain from the President’s Secretary, a certified copy of the entirety of the proceedings of the Commission along with the report submitted by it and make it available for their perusal and by any other members of the BASL who may be similarly concerned.

The letter has been signed by President Counsels, K. Kanag-Isvaran, Ikram Mohamed, Faisz Musthapha, Upali A. Gooneratne, Geoffrey Alagaratnam, Romesh De Silva, Wijeyadasa Rajapakshe, U. R. De Silva, Nihal Jayamanne, Upul Jayasuriya and Saliya Peiris.

The Bar Association of Sri Lanka in a statement issued on April 17, 2021 has said neither has a copy of the PCOI report been made public nor a copy given to the BASL despite a request for it. The statement goes on to express the concern of the Executive Committee with regard to the manner and timing in which the motion has been placed on the order paper of Parliament and the fact that steps are being taken to implement certain findings and recommendations in the report without the report itself being released to the people.

The BASL statement also points out that the motion, if passed by Parliament, would be inimical to the doctrine of separation of powers and an affront to the rule of law, the independence of the Judiciary and would set a bad and unhealthy precedent with regard to due process.

The BASL is also of the view that even if the motion is passed by Parliament it will have no effect on the Courts, the Attorney General’s Department or the Commission to investigate allegations of bribery and corruption.

In its statement the BASL also warns that “it will firmly resist any attempt to use the said motion to withdraw any criminal action pending before any Court of Law” and urges the Prime Minister to refrain from pursuing with the motion.

With reports that the Attorney General too is not amenable to withdrawing criminal actions that he himself has filed, the Government may not have its way in pursuing a course of action that no democracy worth its salt will even contemplate pursuing. (javidyusuf@gmail.com)