Rajpal's Column

01st November 1998

Mr. Attorney General, nothing is over until it’s over

By Rajpal Abeynayake

Nothing is over until its over. This, the Attorney General had to concede at a crucial press conference on Thursday morning, when he met the national media to answer questions about allegations of abuse of power in office.

The Attorney General told the press that the matter under review is open for discussion, conceding thereby that nothing is final until its final.

The Attorney General’s contention to the charges that he abused his authority to rig the outcome of a divorce case in which he was named co-respondent, was to say that the case was legally over because the complainant had withdrawn the case. His position in short is that what’s legally final is final, and that the newspapers or the public have no cause complaint in what’s palpably over in the legal arena.

Consider this then. The parliament of Sri Lanka, considering the legal verdict of a presidential commission, passed a resolution depriving Mrs. Bandaranaike of her civic rights in 1980. Mrs. Bandaranaike was deprived of her civic rights by ratification of parliament of “this legally binding verdict.’’

Take the scenario of 1996. The parliament of Sri Lanka votes overwhelmingly to reverse this “legally binding verdict.’’ The commission, legally constituted, legally written into statute as a Presidential commission, is found to have acted in a partisan manner, and parliament votes overwhelmingly to apologise to Mrs. Bandaranaike for the then resolution depriving her of her civic rights. Parliament effectively and retroactively negates the vote of several years back, and votes to nullify the legal verdict of the Presidential Commission because the Commission was found to be serving the ends of the then government. So much then for legally final decisions.

That’s a good example of the fact that nothing is over until its over, especially when allegations of partisanship, of tampering with the legal process etc., are under consideration. The logic should be fundamental in any system of government that professes to uphold the rule of law. No court verdict can be binding, if it can (underline if ) be substantially proved that there was a mistrial, that the judicial process was tampered with by the use of extraneous influence. That’s basic, and it wasn’t explained by the Attorney General at Thursday’s press conference though he quoted from his vast knowledge of the law to support his own position. This legal fundamental is the reason there have been cases of courts vindicating, posthumously, persons executed for having being found guilty of murder, for instance. Though executed persons cannot be brought back to life, courts have apologised to the next of kin in several documented cases where it has been discovered that a man was executed even though he was innocent. Mistrials happen all the time, and legion are the number of court verdicts which have been overturned due to charges of mistrial. That’s not contempt of court to state this verity. That’s blunt naked fact, as the parliament of Sri Lanka should know, because this is a parliament that has acknowledged this fundamental rule when it overturned a previous decision of a Presidential Commission.So what goes for a Prime Minister can go for an Attorney General, provided it can be proved substantially that there was a mistrial, or that there was abuse of power or any other irregularity involved in the case that involved the Attorney General as a co-respondent in someone else’s divorce case.

This whole AG imbroglio was sprung upon the public in such a frenzy that the public may not be aware of the fundamental fact of the case. Here then is a brief wrap up, for purposes of clarity only. The Attorney General was named a co- respondent in a divorce case, in which a husband had filed for a divorce from his wife in the District Court of Colombo. The plaint charged that the Attorney General Sarath Nanda Silva and the complainants wife had had an adulterous relationship.

The respondent filed a counter demand suing the complainant for damages. The judge ruled with the respondent. The complainant lodged an appeal with the court of appeal. He later withdrew the appeal.

The complainant subsequently wrote to the Judicial Services Commission stating that the case was extraneously influenced. He in his complaint stated categorically that there was a mistrial, and a miscarriage of justice.

The Judicial Services Commission subsequently referred this file to the Attorney General’s department, which closed the case.

On Thursday, the Attorney General said that he is not “aware about the complaint made to the Judicial Services Commission by the complainant.”

This correspondent responded that in that event he is making him aware of the complaint now, (at that moment.) The Attorney General then said that the Judicial Services Commission had referred the matter to the AG’s department for advice in December 1995. He was appointed in January 1996.

Things can get a little curious at this point. The Attorney General maintained to the press earlier that he was not aware of the JSC complaint. How does he also in the same breath say that he was aware that the date the file was referred to from the JSC to the AG, was before he is appointed? How is he aware of the dates about something he was not aware of.

Maybe the Attorney General was not prevaricating, he was merely getting confused in the heat of the moment. But, questions necessarily arose that needed clarification. That’s one aspect germane to evolving events. Another is that the complainant alleges steadfastly, even today, that there was a mistrial, that he was forced to withdraw the appeal in the appeals court. If so, the complainant has a right to maintain his contention, and seek redress, without falling foul of court, in terms of contempt.

The Attorney General did say on Thursday that anybody who challenges the court verdict is in contempt of court. That’s a little bit of browbeating practiced by the AG, it appears, for the simple reason that its not the substance of the verdict or its ramifications that are being challenged. The complainant, not the press, is now challenging the very process of court that arrived at the judgement that went against him. In other words, he is saying, the whole process was irregular , because court was influenced. Doesn’t the complainant have redress, or a hearing under these circumstances? Is it equitable to deprive him of a hearing on this grievance, on grounds that he may be in contempt? You be the judge of that.

Legally speaking, the complainant has not exhausted his remedies. He still can go to the Supreme Court , and the AG himself said so at Thursday’s press conference. Obviously, the AG is in contradiction of his earlier statement that “its final and binding.”

Its this prevarication and confusion that’s not furthering the AG’s cause. He can be more forthright, and help himself, but that’s his business. But what’s also pertinent is that questions will remain about this case in the public mind as long as these ramifications and details are not clarified.

Somebody mentioned parallels between the Clinton/ Lewinsky case and the case of the AG. We do not know about parallels, but Clinton looked the American people in the eye and said “ I did not have sex with that woman.” Later, he almost went down on his knees begging for forgiveness for misleading the American people, and now is under threat of being impeached.

There is no parallel, surely, but if (and if at all) the AG is guilty of what is stated to be abuse of his power, his transgression will be much greater than Clinton’s. Clinton has perjured and suborned perjury, but there is no evidence of his directly having tampered with the judicial process. IF Ravaya or anyone else has the proof, the AG would have been guilty of tampering with the judicial process. It follows that IF the charges are proved he should be removed from office if he does not resign. That’s if the government hopes to carry on with any semblance of credibility vis a vis its policy with regard to administration of the legal process.

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