Sunday Times 2
Shani Abeysekara case and AG’s conflict of interest
View(s):The severe castigation of the police and the lower courts by the Court of Appeal (CA) calls for investigations into the undue incarceration of the then CID Shani Abeysekara. He had languished in remand custody for 10 months during which he contracted Covid-19, suffered a heart attack and was forced to undergo surgery, the CA noted.
Shani Abeysekara: Gets bail
The CA has stated, inter alia: “The allegations against the suspect Shani Abeysekara are a result of falsification and embellishment and a creature of after-thought”. Noting that the witnesses against Abeysekara had waited six years to make the allegation against him, the CA has stated: “On account of the said unusual and extraordinary delay, the complaint has not only lost the benefit of the advantage of spontaneity, but also smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect for collateral purposes.
“Not only that. The said delay has not been satisfactorily or credibly explained. It is crystal clear that the statements given by the said witnesses in 2020 are contradictory to statements given by them in 2014.”
The CA judgment calls for a vigorous investigation with a view to prosecuting the set of collaborators or conspirators in this heinous crime. The Police Spokesman was heard on TV stating that the police would await directions and guidelines regarding follow-up action. So, the ball has been passed to the Attorney General’s court for directions. This is strange, as the AG’s directions were not required to investigate the delayed complaint against the CID officers. Meanwhile, the bar of public opinion is screaming for justice.
But, can the AG direct investigations when he, too, has compromised his position by continuously objecting to bail in this case, which action the CA has described as unbelievable, in the strongest possible words? The AG did not give valid reasons for objecting to bail in the CA, whereas bail is due process, unless valid reasons are adduced. The AG now finds himself in a conflict-of-interest situation.
It is noteworthy that the Magistrate’s Court (MC) has directed the Colombo Crimes Division (CCD) to notice the AG forthwith. The MC, however, was in abeyance due to Covid-19 restrictions, while Abeysekara was languishing under interdiction without pay and is without pension after he retired this week.
The CA has also castigated the High Court (HC) as can be deduced from its judgment. Bail application has been made to the HC on August 20, 2020 and the AG was noticed to appear. The case was postponed on four occasions at the request of the AG to file objections. On August 27, the case was mentioned and postponed for September 17, then for October 5, November 10, November 26, December 7 and December 9, the day on which the order was given, refusing bail. This was because the AG objected to bail on the flimsy ground that suspect would interfere with witnesses – witnesses enjoying protection of such powerful collaborators or conspirators!
In the CA, the bail application was argued on June 15 and decided on the following day.
Furthermore, where is the supervisory jurisdiction of courts? I remember in the good old days, when judges such as Justice Sri Skandarajah would call for the case record on seeing anything untoward from reading the newspapers or from whatever source, and ensuring that due process was followed. Those judges did not do so for the pleasure of it. The supervisory role was a duty cast on them.
This bail application case was also subjected to laws delay that vitiates due process and tells heavily on litigants, whilst benefiting lawyers with courts granting dates. In this case too we saw a judge recusing himself on one date and another absenting for reason of travel disability, on another date. Laws delay is in effect throwing away all that Lady Justice stands for — it is turning manna to bitter gall.
At a glance this episode may seem to be a dispute between officers of the Criminal Investigation Department (CID) and officers of the Colombo Crimes Division (CCD). There is more to it than meets the eye. The CID investigation into the Vas Gunawardena case was conducted in 2014 and no valid motive had been adduced for fabrication of evidence. The CID case has stood the test of a trial at bar and appeals to higher courts, that convicted the accused. The CCD investigation, on the other hand, has been initiated on the findings of a Presidential Commission of Inquiry into political victimisation 14 years later, giving no valid reason for the delay to make the complaint.
The CA has pulverised the evidence of the CCD witnesses and pointed out that it is a concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to suspect Shani Abeyrekara, for collateral purposes. This makes it clear that saving former DIG Vas Gunawardena is incidental. The collateral purpose of discrediting Abeysekara is to save high profile persons who have been implicated in investigations conducted by him, as perceived by the CA to be the real motive.
Let us look at reality in the face. The consensus is that it was the pressure exerted by the European Union (EU) that turned tables to mete out justice in this political quagmire. Where are we heading?
Have we come to a situation where we have to seek EU intervention and the United Nations Committee for Human Rights for justice?
(The writer is a retired Senior Superintendent of Police. He can be contacted at seneviratnetz@gmail.com TP 077 44 751 44)