Columns

When President Anura Kumara Dissanayake and his National Peoples’ Power (NPP) Government point an accusing finger at the Department of the Attorney General asking as to why sensitive prosecutorial files get ‘lost in the dust’ for several years, four fingers are pointed right back at them.

Running around in circles is not governance

The priority at hand is not to ‘run around the political mulberry bush,’ or the tea bush, (as the case may be in this green and verdant land with the human species being most vile), bleating platitudes on the virtues of good governance. Delivering fiery and critically impassioned speeches to captive audiences as the NPP leadership ranks are typically wont to do, hardly serve the purpose. Neither does it help to see a conspiracy behind each tea bush of constructive criticism.

In fact, pontificating is the job of the Opposition, which by the way, it is not doing in any sensible way whatsoever. Regardless, the task of the Government is to put into place structural and institutional reforms in line with oft-bleated election promises.  In this particular case, we are talking of correcting systemic imbalances that have made this nation’s prosecutorial record a ghastly joke. That is the case across the board, whether in regard to high profile ‘political cases’, gross human rights abuses or an abysmal record of failed indictments under the Convention Against Torture (CAT) Act.

Much has been written substantively on these matters with unerring identification of critical weak points in the prosecutorial system and solutions proposed therein on multiple levels, looking at lessons offered by other countries which have gone through similar travails.  I will return to that point later. Bumbling prosecutions have been also evidenced  in regard to grievous harm caused to the Sri Lanka State on environmental, financial and regulatory fronts including the ill-famed X-Press Pearl marine disaster.

The grim comedy of ‘catching the guilty’

Nonetheless, the famed ‘blame game’ continues with the state law office responding to NPP criticisms of ‘unwarranted delays’ by announcing that files will not be opened or cases filed in court when the police investigations thereto are ‘incomplete.’ That hardly answers the demand by Sri Lankan citizens to correct legal and investigative processes after decades of failed prosecutions. This is a carefully choreographed game that has been played for far too often to be accepted blandly without critique.

In that less than reassuring backdrop, there is a touch of grim comedy in the fact that out of all the high state misdeeds attributed to former President Gotabhaya Rajapaksa, it appears that a peculiar case of an electricity connection obtained by one ‘G Rajapaksa’ to a house in Kataragama has been currently prioritized. Or so we are told in a blaze of publicity over the Criminal Investigation Department (CID) now in the hands of the NPP’s trusted lieutenants, summoning the former President to question him in regard to the same this week.

That somewhat farcical development apart, there are certain home truths that must be told, as unpalatable as these may be to Government ears. In the first instance, the serious business of governance in line with the NPP’s election manifesto must focus on its own due diligence. There had been an evident failure of this in regard to the Minister of Justice recently handing over an award to former Prisons Commissioner Emil Lamahewa in recognition of ‘decades of service’ in the Prisons Department?

Are there crimes without perpetrators?

This is the same official who had been handed down a death sentence by a Colombo High Court Trial-at-Bar following a two year trial in regard to the killing of twenty-seven prisoners and the injuring of more than forty prisoners at the Welikada Prison on November 09 and 10, 2012.  These horrific clashes took place when prisoners ran riot at the prisons during a sudden search for smuggled weapons, drugs and mobile phones. Lamahewa was acquitted by a five judge Bench of the Supreme Court last year based on a judicial assessment that the evidence before the trial Court had been insufficient in law to sustain the conviction in issue.

Other than Lamahewa, former Police Inspector Neomal Rangajeewa was earlier found not guilty by the High Court. Indictments filed against the two prisons officials several long years after the incident cited more than thirty charges on inter alia, conspiracy to murder, unlawful assembly. The charges included the murder of eight inmates who had been selected and taken to a particular part of the premises of the Welikada Prisons. With the apex court’s acquittal of Lamahewa, this joins the long list of crimes where no perpetrators have been brought to justice.

But in regard to the Lamahewa award hullabaloo, the NPP’s explanation as to how this serious mishap occurred is even more ludicrous than the highly distasteful incident itself. Responding to public anger, the Deputy Minister of Public Security leapt to the defence of his ministerial colleague by claiming that the Justice Minister had been ‘unaware’ that the event organized by the Department of Prisons would include the handing over of such an award. Indeed, it would have been better if such a manifestly silly explanation had not been proffered at all.

Exhibiting an unsettling pattern of political naivete?

The problem is that this is not an isolated incident. On the contrary, it reflects an unsettling pattern of NPP ministerial initiates being ‘taken for a ride’ by deeply subversive and highly corrupt (institutionally as well as financially) public servants. But to return to our primary focus this week, practical steps must be taken by the Government to redress what President Dissanayake himself described as a serious problem. Rather than ‘discussing’ with the Attorney General and his officers regarding an endemically stuttering prosecutorial process, the NPP Government may be advised to acquaint itself with the International Monetary Fund (IMF)’s Governance Diagnostic Report (September 30, 2023).

This provided a raft of eminently sound recommendations analyzing corruption vulnerabilities and governance weaknesses. In fact, a rocky prosecutorial road was deemed to be grave enough to warrant the IMF including an annex on ‘an independent prosecution service for Sri Lanka.’ While qualifying that it does not ‘advocate’ the adoption of such a mechanism, the IMF nevertheless emphasised the ‘importance of the prosecutor’s independence from the Executive, as in Sri Lanka there is no independent prosecution service.’

That pungent critique should make any who boast about the country’s ‘long legal history’ cringe in shame. It is said that there is ‘little, if any, transparency’ in the way that the state law office functions. ‘Nor are there any guidelines in place to safeguard independence (or consistency) of decision-making.. ’ the report adds. It points out that ‘this absence of transparency-and independence…may be one of the reasons why there have been repeated calls from eminent observers and the Sri Lankan public for the establishment of a national independent prosecution service.’

In sum, the state law office is reduced to a means by which the Government exerts ‘pressure on the justice system’ due to the fact that the Office of the Attorney General ‘comes within the direct control of the Executive.’ The IMF recommendation is for a legislative amendment to introduce the office of a Public Prosecutor. That is a ball that may be caught with all due speed.

That is, if the Government is serious about its rhetoric both on governance and effective debt restructuring.