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Supreme Court strikes stunning blow for political accountability
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- LAW LORDS LANDMARK JUDGEMENT
- Alarm call for all politicians and public officials as Sirisena is shorn of immunity and fined Rs.100m for neglecting Easter blast warning
Seven Supreme Court Law Lords came out in full force on Thursday to deliver a stunning historic judgement that places all in the political and government establishment on judicial notice for accountability and negligence.
In their 122-page unanimous judgement, they cast aside legal immunity enjoyed by a President for acts or omissions committed during his or her term of office and held the former President, Maithripala Sirisena, liable for breaching his constitutional duty to protect the citizenry.
The judges declared that Sirisena ‘has been lax in affording the protection and guarantees enjoined under the Constitution and other laws.’ He had infringed the right of the people to enjoy equal protection of the law under Article 12(1); and also the freedom, either alone or with others, in public or in private, to manifest his religion or belief in worship, observance, practice and teaching under Article 14(e).
JUSTICE IN ITS LAST FULL MEASURE? Cardinal’s Counsel Shamil Perera PC, who fought a tireless three-year legal battle for justice for the Easter bomb blast victims, seen here with his client, Colombo’s Archbishop Malcolm Cardinal Ranjith at a post-judgement news conference on Friday
It was held that, with the enormity of the risk so great and the potential injury so serious, no reasonable man in the position of President Sirisena would have acted as Sirisena had acted by failing to give serious regard to the Easter bomb blast warnings.
Sirisena’s liability for his negligence was firmly nailed to his constitutional cross when the Law lords declared, ‘it was the bounden duty of the former President Sirisena to have supervised his departments.’
The Supreme Court held that former President Sirisena had violated the fundamental rights of the Easter bomb blast victims, and ordered him to pay Rs. 100m as compensation from his personal funds.
But he was not alone. There were others who also had to pay the price of negligence.
The Supreme Court proceeded to hold: “It follows as the crow flies that if laws and structures are declared to the public as the benchmarks of safeguarding the security of the country and thus the protection of its people, it is no defensive argument that subordinates who were delegated with the powers both by Constitution and statute failed the repository of the main powers.”
The judges held the following four subordinates, also liable and ordered them to pay compensation from their personal funds in the following manner:
Pujith Jayasundara, the then IGP, Rs. 75m
Nilantha Jayawardena, former State Intelligence Director Rs. 75m
Hemasiri Fernando, the then Defence Secretary Rs. 50m
Sisira Mendis, former Chief National Intelligence Director Rs. 10m
The State was ordered to pay a nominal sum of Rs.1m as compensation, over and above any sums already paid by the State.
The Cardinal’s Counsel Shamil Perera PC who appeared, with his two juniors Duthika Perera and Primal Ratwatte, for the Archbishop of Colombo, Malcolm Cardinal Ranjith, had, in his written submissions to court, referred to the affidavit by the then Prime Minister’s Secretary, which stated that there was a cabinet decision to pay Rs. 1m to each family of a deceased and Rs. 500,000 to each of the injured.
Counsel Shamil Perera submitted, “there has been not only an underpayment of compensation but also nonpayment as far as the majority of the victims and families are concerned.”
The judges took careful note of this submission and held: “This Court orders this fact of the matter to be investigated by the Office for Reparation and accurate information by way of a motion should be made available to this Court as to the above facts within 3 months from the date of this judgment.”
The Court ordered all compensation payments to the victims amounting to Rs. 311m be paid to a ‘Victim Fund’ to be established at the Office for Reparation.
The then Prime Minister Ranil Wickremesinghe had initially also been named as a respondent in the case. But after Parliament elected him President last July, his name was removed from the respondents’ list since his presidential immunity would have debarred the case from proceeding.
But even if he hadn’t been President, he would not have been liable for any infringement. The Supreme Court observed: “Some of the members of the Cabinet including the Prime Minister were kept out of what appears to be a jealously guarded intelligence and in the circumstances, it is inequitable to hold them liable as they are not similarly circumstanced as the respondents we have found liable.”
In the case of former SIS Director Nilantha Jayawardena, the court ruling seems somewhat bleak for him. He was promoted on December 31 — just eleven days before the Supreme Court judgement — as Senior DIG Administration, the second highest ranking officer in the Police, and widely tipped to be the next IGP. His chances seem to be blasted with the Supreme Court directing the State to “take appropriate disciplinary action forthwith against him for his aforesaid lapses and failure”.
The Supreme Court ruling, finding former President Sirisena liable for his acts or omissions firmly establishes that a president enjoys presidential immunity only whilst president. That any legal liability, which may attach to presidential acts, is only suspended whilst in office and comes alive the moment he ceases to hold the post. The ruling is a tacit reconfirmation of Justice Mark Fernando’s judgement in Karunatilleka v Dissanayake (1999) where he stated:
“Presidential immunity prohibits the institution or continuation of legal proceedings against the President while in office; it imposes no bar whatsoever on proceedings against him when he is no longer in office. Immunity is a shield for the doer, not for the act. It neither transforms an unlawful act into a lawful one, nor renders it one which shall not be questioned in any Court.”
Finally, the Supreme Court gives echo to the nation’s outrage and states, “We must express our shock and dismay at the deplorable want of oversight and inaction that we have seen in the conduct of affairs pertaining to Security, Law and Order and Intelligence.”
For the injured victims and the families of the dead, it was justice at last, though not, perhaps, in its last full measure. That will have to await the outcome of the criminal trial of the true masterminds behind Easter Sunday’s bloodbath.
Gloves are off as Government charges in to knock out polls
The gloves were off this week as the Government charged in to knock out local elections off its constitutional timetable. But the bullish tactic backfired and has placed the Government in danger of ending up red faced. If last week had witnessed tear-jerker scenes of government ministers and MPs bemoaning how the Rs 10 billion cost of holding polls could be better spent on feeding the starving poor and combatting children’s malnourishment, then these last few days showed the government’s bare-fisted determination to ward off the day of judgement. In an unprecedented move, the Secretary of the Home Affairs Ministry issued a letter on Tuesday to all District Secretaries, instructing them not to accept deposits from candidates hoping to contest the local elections. In normal times, they would certainly come under the Ministry Secretary’s exclusive purview and control. But with the election process set in motion with the announcement of nominations, suzerainty over district secretaries — in any election matter — constitutionally passed from the Prime Minister’s Home Ministry to the province of the Election Commission. As opposition protest grew over this extraordinary step, Secretary Hapuhinna backtracked and withdrew the offending circular, hours after sending it. But it was far too late to prevent the fallout. Home Secretary Neil Hapuhinna had already cast the Government into public contempt with his claim that the cabinet had ordered him to stop district secretaries from accepting election deposits. So far the cabinet has not denied his charge, but even if the cabinet confirms his claim, Hapuhinna cannot get off the hook. Public servants cannot violate the constitution any more than cabinets can. The appointment of H.K.D.W.M.N.B. Hapuhinna as Secretary of the Public Administration, Home Affairs, Provincial Councils and Local Government Ministry by the President was made on January 1, only 10 days before the row broke out. On July 27 last year, President Wickremesinghe appointed Hapuhinna as Secretary to the Women’s Ministry. Earlier he had been appointed Secretary to the Trade Ministry on April 24 last year by former President Gotabaya Rajapaksa following calls by its then Minister Bandula Gunawardena for Trade Secretary Ms. Badrani Jayawardana’s removal.  SECRETARY HAPUHINNA: In storm after only 10 days at post On Friday the Election Commission summoned Hapuhinna for his explanations. His excuse was that he had sent the circular only to implement a cabinet decision, for which he had apologised. But after violating the constitution, is saying sorry enough to get a ministry secretary off the hook without punishment or censure? Is that the message the government wishes to send to the lower ranks in the public sector? Especially when the opposition has called for his resignation, with some demanding his prosecution. Later on Tuesday, cabinet spokesman Bandula Gunawardena turned bogeyman and became cabinet scaremonger to dole out presidential warnings that the Samurdhi benefits to the worse off may be delayed a teeny weeny bit by two weeks coupled with delays in paying government servants’ their salaries. Coincidentally on the same day, government pensioners, turning up at state banks to withdraw their monthly pensions, found to their shock the Central Bank had failed to deposit the necessary funds. The picture of Treasury coffers bare was made replete when the derisible confessions of a government living on a hand-to-mouth existence added the final touch. With such a portrait poignantly painted, the crude message was subtly conveyed to validate how unrealistic it would be for anyone to demand a 10 billion buck election at this perilous hour. If that was the Government’s gloomy stance, the dominant party that forms the government, maintained a sunshiny opposite view of welcoming the elections with glee, flamboyantly gloating on their death wish and daring it to be proved true. Despite the government warning of financial adversity together with the alleged cabinet attempt to throw a spanner in the election process, the SLPP, whose members constitute the majority in the cabinet by far, continued to trumpet from the rooftops, their strident call for elections to be held on schedule. Mahinda Rajapaksa, whose travel ban was lifted this week by the Fort Magistrate’s Court with the Attorney General Sanjay Rajaratnam concurring, to allow him to fly abroad from January 20 to 31, told the Sunday Times last week: “We cannot run away from the people. If we have made mistakes, it is only then that we can correct them. We must learn from our faults.” But didn’t he say the same thing to his people during his Yahapalana years in the wilderness? Of his folly of having kept corrupt ministers around him? And how he has learnt from those mistakes? Did the last three years in power, after his comeback as Prime Minister in November 2019 till his departure in May 2022 following the attack by SLPP goons from Temple Trees on Galle Face Green’s protesters, show any signs he had truly reformed? Or does the catalogue of his party’s actions reveal instead the ruinous replay of past mistakes and corruptions that led to Lanka’s bankruptcy? Well, if one didn’t learn from one’s follies the first time, perhaps one has learnt from its repetition the second time round? Going by the SLPP’s media blitz, it seems the whole party has shuffled off its corruption coil and turned a new leaf faster than its lotus bud has taken in its sterile struggle to bloom. In its hard-sell campaign urging people to vote for the SLPP at the forthcoming elections, newspaper ads and leaflets proclaim their promise to dawn an SLPP ‘Superfine Village Government, from mother’s womb to the earth’s tomb, entering a digital technology era with transparency, free of bribery and corruption, nonpartisan prompt public service in a village made by us for us to live in’. Are these the make-believe promotional phrases, churned out from their propaganda outfit, that make them publicly welcome the elections and appear cockily confident of triumphing polls to disguise their worst fears? Home Secretary Hapuhinna may have, perhaps unwittingly or not, let the poll-cat out of the bag. The real question is not whether the leopard can change its spots or whether the SLPP leaders have learnt from their mistakes and are redeemed from corruption and cured of amnesia but whether 6.9 million voters are still daft to repeat their folly. | |
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