In another of her now familiar outbursts , President Chandrika Kumaratunga recently lambasted senior public officials for not doing their job properly.In a ‘Meet the Public’ session televised over the SLRC ( the official transcripts of which were published in the Dinamina of 29/12/1997 ) the President focussed on the work of the various commissions appointed by her to look into political assassinations, corruption and malpractices and dissappearances.This was in response to a question posed to her which asked her to specify what action had been taken on these commision reports.
The President stated that the commissions had been appointed to look into these issues and recommend relief speedily.The need for such commissions was pointed out by her to be the fact that the normal legal system of the country is subject to much delay.The commissions were meant to bypass these obstacles.However, in an angry retort, she pointed out that the commisions were themselves operating in a lethargic manner.
“ I have had to summon them and ask them to hurry things up. Otherwise, I have said that I will hand the job over to the people” she said.She reprimanded officers of the Attorney General for delaying to implement recommendations of the commission appointed to investigate the assassination of Vijaya Kumaratunge, which report was released to the public on the 29th of February 1996.Protests from commissioners of the various commissions and legal officers over her remarks which they termed as “ unjustified” were immediate.
The Sunday Times examines this controversy in the context of the Special Presidential Commissions of Inquiry Act and the Commissions of Inquiry Act under which these commissions have been appointed, while looking in particular at the findings of the Special Presidential Commision of Inquiry appointed to inquire into the assassination of Lalith Athulathmudali.
Out
of the rash of com mission reports that have inundated the public in recent
times, the Athulathmudali assassination commission report could perhaps be
classed in a category quite of its own.Stories of treachery and betrayal, truly
horrific accounts of underworld doings and grisly details of killings, rapes and
murders all jostle each other in the colourful language of a gripping John Le
Carre. One has to forcibly remind oneself of the fact that it relates to actual
events, that Lalith Athulathmudali was really murdered, and that this report is
an investigation into that murder.
The report, comprising all of 453 pages, was handed over to President Chandrika Kumaratunga in October last year.It is yet to be made public.As details in the state run newspapers specified at that time, former President Ranasinghe Premadasa was implicated of being directly involved in the assassination.It was pointed out that none of those who actually carried out the assassination would have done so without his approval.His political confidante, former UNP Minister Sirisena Cooray was recommended imposition of civic disabilities on the basis that he had committed contempt of the Commission by not appearing before the Commission when summoned to do so.In the alternative, it was said that due to his conspiring with several others to assassinate Athulathmudali, this penalty should in any case be imposed.An assortment of strange characters with stranger names were recommended indictment under the Penal Code for carrying out the actual act.A number of senior police officers were also put on the mat, and the IGP was asked to investigate their conduct in handling the murder investigation.
Reading the actual report in full, the reasoning behind these conclusions would run something like this.In a separate section that is subtitled ‘President Ranasinghe Premadasa’ ( coming rather ironically after a heading termed ‘ Miscellaneous Matters’), the Commission consisting of former Supreme Court judge Tissa Bandaranayake and High Court judge G.W. Edirisuriya discusses the former president’s culpability.
It is pointed out that it is he who had the strongest motive to eliminate Athulathmudali.He was badly insulted by the Impeachment motion, his place as head of state publicly ridiculed and a popular movement against him spearheaded by Athulathmudali was developing.
The Commission draws attention to the fact that a number of senior policeman had been implicated in both the assassination and the following cover up by blaming it on the LTTE with the convenient discovery of a dead body said to be a Tiger in Mugalan Road the day after the murder.It was moreover apparent that those engaged in the actual act as identified by the Commission were infamous members of the underworld.The killing was done by them.Before that, Athulathmudali was hunted, assaulted and humiliated during his election campaign.The killing was elaborately planned, the need for deception being of paramount importance.The Commission questions as to who could enlist the support of so many all over the country if not Premadasa ?
“Without his command, no one would have dared to do something that would rebound on him,: but this is something he would be capable of and inclined to repel with all the powers of his office and support of his men, if he himself had ordered it “ the Commission says.
“ All the facts and circumstances taken together point to his guilt and are inconsistent with his innocence.......we make no recommendation as he is deceased “ it concludes.These views are expressed in the context of observations that violence was the order of the day then.The manner of suppression of the JVP is said to be a visible lesson as to the lengths that the Government was prepared to go.Killing those who opposed the regime was the accepted thing.It is in this background that Premadasa’s personal and political motives for eliminating Athulathmudali is looked at by the Commission.
Ragunathan
Earlier,
it had been found by the Commission that UNP provincial councillor U.L.
Seneviratne had played a key role in the assassination that took place in
Kirullapone.Referring to him as the ‘Field Manager’ of this infamous
enterprise, the Commission states that evidence given before it had established
that he had sought to contract a thug called Chintaka to kill Athulathmudali,he
had requested bombs to be made which had in fact been made and delivered to him
and had actively participated in an earlier assault on Athulathmudali when
demonstrating at the Fort Railway Station.Evidence given before the Commission
had established that Seneviratne had conspired together with Sudumahattaya (
said by the Commission to be the actual assassin ) , Soththi Upali and others,
to kill their targeted victim at the Kirullapone DUNF meeting. Seneviratne had
also been implicated in the plot to abduct and kill Ragunathan, posing him off
as the LTTEer who had assassinated Athulathmudali and then killed himself.It was
said to be in Seneviratne’s flat within ‘Sucharitha’ premises
that these plots were concocted.But Seneviratne alone could not have got the
support and co-operation of the many police officers necessary to carry out the
task.
“(However) President Premadasa and Mr Sirisena Cooray could have.They had the political clout to get policemen to use their lawful powers in an improper unlawful manner.We see this over and over again, physical attacks and a cover up “ the Commission remarks.
In sum, this is the totality of the evidence implicating the former President. Strong similarities therefore exist between this verdict and the finding of the Kumaratunga Assassination report against Premadasa.The latter report that was presented to the President on the 29th of February1996 by another Special Presidential Commission of which present Attorney General Sarath Silva was chairman concluded that a prima facie case was established against Premadasa for indirect involvement in the assassination of Vijaya Kumaratunga.The former President was implicated by evidence of a motive for the assassination and by circumstantial evidence of the suppression of the investigation. Former Minister Ranjan Wijeratne was meanwhile found guilty of illegal and improper interference in the conduct of the investigation into the killing.Shortly after the findings were made public, there were protests made that they were not warranted by law. Several commentators, among them former Supreme Court justice A.C.Alles, examining the reasoning of the Commission from a legal standpoint, warned of the dangers of this kind of thinking.
“ In essence, it means that since Premadasa succeeded as President that he must have had a hand in the liquidation of a political rival......this is a concept completely alien to established principles of criminal law.
.......In the absence of a motive which is the strongest item of evidence against the former President, what is the prima facie case that he was indirectly involved in the assassination? There is no evidence that prior to the assassination that Premadasa knew the assassins, had any contact with them or entered into a conspiracy with them to liquidate Kumaratunga.” he pointed out..
Findings of both the Kumaratunga assassination report and the Athulathmudali assassination report was based on the fact that the persons assassinated were said to have been formidable political rivals of Premadasa’s.In both cases, no evidence sustainable in law was found linking the former President directly with the killings.In Athulathmudali’s case however, the evidence apparently implicates persons close to Premadasa to an extent not seen in the Vijaya Kumaratunga assassination. It should be noted that Premadasa was found implicated of indirect involvement in the killing of Kumaratunga, and of direct involvement in Athulathmudali’s assassination.
In the latter report, allegations against former UNP Minister Sirisena Cooray are specific..There is evidence given by Seneviratne while in remand jail that it was Sirisena Cooray and Weerasinghe Mallimarachchi who wanted Athulathmudali destroyed as he was a political rival.Evidence also establishes that the assassin Sudumahattaya was a friend and bodyguard of Minister Mallimarachchi’s , and that the underworld king going by the name of Soththi Upali was bodyguard to Sirisena Cooray and had worked closely with him. In the circumstances, it was implied that Cooray was in a conspiracy with these persons to assassinate Athulathmudali
“These crimes have been planned not by a volcanic type of personality who just explodes and subsides. This planner awaits his time patiently after careful preparation and and gets others, perhaps under obligation , to commit crimes to sustain their corrupt regime” the Commission inserts.
All this is a matter of opinion.In any case, could they be taken as circumstances to infer the fact that Premadasa himself masterminded the killing? Certainly, in terms of strict legal principles, the answer appears to be in the negative.
This in effect continues to be the main problem with Commissions of Inquiry appointed under the Special Presidential Commissions of Inquiry (SPC) Act.As more and more reports are submitted by commissions appointed under this Act, it becomes obvious that radical revision of this law will have to take place. The gap between findings that they come to in terms of the Act under which they act, and the actual law of the land appear to be wide. Many things that could not be permitted under the latter are allowed under the former, one example of which is the way in which third party statements are believed without those persons themselves coming to court. Appeal from decisions of the commissions are not possible, and in a sense persons are subjected to kangaroo trials. All these were reasons why the UN based Human Rights Committee informed the Government in 1995 that the SPC Act violated international obligations and the Civil Rights Movement continues to insist that the SPC Act violates basic laws of human justice.
Linked with this whole question is of course what should be done when as President Kumaratunga has pointed out, the wheels of justice grind exceedingly slow. Or when there has been a deliberate cover up by the party in power? Should the answer lie only in appointing special commissions as soon as the government changes hands ?
Recommendations in the Kumaratunga Assassination Report could be very relevant in this respect. In this report, the Commission had suggested that the President set up a Special Centralized Unit within the Police Department to handle investigations relating to politically sensitive crimes. This unit should also have the power to gather and analyse intelligence relating to such activities and to disseminate information to other agencies of the police in order to effectively combat such crimes. It was recommended that this Unit be headed by a Deputy Inspector General to be appointed by the President until the formation of the Constitutional Council. This step was said to be necessary in order that the Unit will acquire a degree of independence from the executive.
It was suggested that the Unit be advised by an Advisory Council comprising of representatives of the Attorney General, Secretary Defence, Secretary Foreign Affairs, Commander of Armed Forces and the Government Analyst, Judicial Medical Officer, Colombo Examiner of Questionable Documents and the Deputy Inspectors General of Police in charge of the National Intelligence Bureau and the Criminal Investigation Department.
The Kumaratunga Commission suggested that this Unit should collect material to be forwarded to the Attorney General for the institution of criminal proceedings. It was also specified that they should keep the President and the IGP informed of their investigations, and report to the Parliamentary subcommittee on Defence on the completion of a particular report.
All this was said to be necessary because of one important reason.
“ We have observed that the normal functioning of the Police Department is wholly inadequate and ineffective to handle seriously motivated offences and acts of terrorism and subversion,” The Kumaratunga Commission stressed.This was a conclusion common to both this commission and the Athulathmudali Commission.
The Kumaratunga Commission went on to suggest that a permanent quasi judicial commission be set up to inquire into complaints of inaction and abuse by the police.
“Numerous persons who have been aggrieved by inaction, suppression of material and abuse of power by the police and by persons wielding political and socio-economic influence may be remaining silent, helpless and frustrated........this is a serious threat to democracy and the rule of law in this country ” the Commission said.
Its call for an independent authority to monitor investigations into controversial killings was not new.It has been made time and time again by civil rights activists.It is understood that reports of the three Disappearances Commissions that were handed over to the President last year also recommend similar action.They have suggested that an independent Human Rights prosecutor be appointed.Their reports have not yet been made public.
The question now becomes this and this only.What has President Chandrika Kumaratunga done up to date about these recommendations.? The Kumaratunga report was handed over to her close to two years back.Surely, enough time has lapsed for swift and decisive action to have been taken. Instead, she castigates hapless public officers for not taking action in law against those found responsible. The problem is whether action could in fact be taken in law against these persons ( quite apart from dead persons) for it is debatable whether sufficient hard evidence exists in the first place, once one disregards the sensationalism of the findings.
In any event, while undoubtedly those who flouted the law ought to be punished to the fullest extent possible, the Head of State should also take some time off to consider how effective preventive measures could be taken to prevent recurrence of such crimes. For this, the Vijaya Kumaratunga report recommendations remain the best answer, the proviso being of course that appointment of a Constitutional Council be delinked from the Package and set up sooner.We have seen already how apparently progressive laws have been negated by the fact that this clause relating to appointments to powerful public bodies have not been followed, leading to considerable loss of public faith, the Permanent Commission on Bribery and Corruption being one example. It is also clear that though the constitutional reform proposals suggest some measure of action with regard to cleaning up the police stables, we cannot afford to wait until the political tinkering stops and the proposals are passed by Parliament.
Ultimately, the issue will have to be looked at soberly and not emotively. To politicise it would be to continue what has truly become a vicious circle.In 1978, when Premier Sirimavo Bandaranaike’s civil rights were deprived under a Special Presidential Commission of inquiry, these same protests were made.In 1998, they continue to be made.
Investigating involun tary disappearances in this country has had a long and not particularly rosy history. Human rights activists estimated that a total of 40,000 persons disappeared during the the 88- 90 period in Sri Lanka. A commission set up to investigate these issues in 1993 by President Ranasinghe under international pressure came to nought, its findings not being published up to date.
In 1994, consequent to specific election pledges being made, the PA Government appointed three Disappearances Commissions under the Commissions of Inquiry Act to investigate all incidents of forced removals after 1988. The Commissions were given geographically specified areas of inquiry. Their reports were submitted to President Chandrika Kumaratunge in September 1997. They have not yet been made public, though it is understood that they would be officially released very shortly.
Commissions appointed under the Commissions of Inquiry Act differs from commissions appointed under the Special Presidential Commissions of inquiry Act in that the former have no power to recommend imposition of civic disbility. Essentially, they are fact finding commissions whose functions are limited to inquiring and reporting. If evidence implicates any individual, separate criminal proceedings will have to be initiated under the general law.
It is learnt that Commission reports sent to the President have suggested a number of remedial measures.
Prima facie cases (established of course on the evidence of the accuser alone) against members of state agencies or subversives have been notified to the chief executive, and it has been suggested that investigations into their guilt be handled by a special unit of the police.
In a particularly novel suggestion, the Commissions have also suggested an amnesty to witnesses, including perpetrators who confess to their own participation in human rights violations.This suggestion is obviously along the lines of what is currently taking place in South Africa where a fifteen month experiment in national healing is promising amnesty for convicted killers, mostly policemen and soldiers but also anti apartheid guerrillas if they come out and confess to the killings.
Meanwhile, other relief measures suggested by the Commissions include payment of compensation, the release of monies in frozen accounts and measures suggested for the emotional and economic rehabilitation of members of the families of those disappeared. It has been in fact pointed out that a new tax similar to the defence levy be imposed to raise sufficient funds for the purpose of compensation.
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