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Reform legal framework on access to safeguards for political victims: CPA

13 May 2021

  • Researchers warn against safeguards being used to impede accountability, justice

By Ruwan Laknath Jayakody   It is evident that the existing legal framework pertaining to access to legal safeguards for individuals who claim to be subjected to political victimisation is in need of structural reforms so as to ensure such safeguards are not instrumentalised to impede attempts to seek accountability and justice, the Centre for Policy Alternatives (CPA) noted. The CPA noted thus in a recently published research report titled “A Commentary on the Presidential Commission of Inquiry (CoI) and the Special Presidential CoI on Political Victimisation” authored by B. Fonseka, K. Ranasinghe, and C. Samarakoon. The three-member PCoI probing allegations of political victimisation from 8 January 2015 to 16 November 2019 (appointed by Gazette Extraordinary No. 2157/44 of 9 January 2020 under Section 2 of the Commissions of Inquiry Act No. 17 of 1948, as amended, with the said Gazette Extraordinary being further amended by Gazette Extraordinary No. 2159/16 of 22 January 2020), which was chaired by retired Supreme Court (SC) Judge Upali Abeyrathne and comprised retired Court of Appeal Judge Daya Chandrasiri Jayathilaka and retired Inspector General of Police Chandra Fernando, handed over its final report to President Gotabaya Rajapaksa on 8 December 2020. During the course of the PCoI’s proceedings, Attorney General (AG) Dappula de Livera had informed that the PCoI, being a mere fact-finding body, had no mandate to issue summons or notice on officials of the AG’s Department and that the PCoI is not empowered to question or review any decision of the AG, let alone have the statutory or legal authority or judicial power to order the AG to refrain from performing statutory functions with regard to investigations and prosecutions, and therefore that such action of the PCoI is contrary to the law and ultimately unlawful and invalid. Also, senior lawyers including past presidents and the incumbent President of the Bar Association of Sri Lanka, representing the private and unofficial bar, expressed serious concerns that the PCoI report’s content may undermine the rule of law, impair the independence of the Judiciary, and erode the impartial and efficient functioning of the AG’s Department. Subsequently, a three-member Special PCoI (under the Special Presidential Commissions of Inquiry Act No. 7 of 1978, as amended), chaired by sitting SC Judge Justice Dhammika Priyantha Samarakoon Jayawardena PC and consisting of sitting SC Judge Justice Khema Kumudini Wickremasinghe and sitting Court of Appeal Judge Justice Sobhitha Rajakaruna, which conducts its sessions close door, was appointed to implement certain PCoI recommendations (appointed by Gazette Extraordinary No. 2212/53 of 29 January 2021, with the said Gazette Extraordinary being further amended by Gazette Extraordinary No. 2221/54 of 01 April 2021). The Special PCoI is empowered to recommend the imposition of civic disability on persons found guilty of engaging in political victimisation as noted in the PCoI’s report. The proceedings of the Special PCoI have, as mentioned by the CPA, been criticised due to allegations of politicisation and the lack of transparency, and therefore, the CPA has stressed that considering its mandate and the significant implications it may carry, it is important that such mechanisms have transparency and accountability. Prime Minister Mahinda Rajapaksa on 9 April 2021 tabled a resolution in Parliament seeking approval to implement certain PCoI recommendations; to institute criminal proceedings against certain investigators, lawyers, officers of the AG’s Department, witnesses, and others involved in these complaints; and for the dismissal of several pending and ongoing court proceedings into cases including several emblematic cases, and ongoing probes in relation to acts of corruption and financial irregularities, abductions, kidnappings, enforced disappearances, assassinations, cheating, dishonest misappropriations, frauds, elephant trafficking, murders, harbouring, aiding and abetting in the evasion of the capture of an abduction, rape and murder-related suspect, illegally maintaining a floating armoury, massacre, torture, custodial death, the misuse of resources and properties, tax evasion, the criminal breach of trust, the possession of a firearm, concealing evidence, gold smuggling, etc. The CPA noted that if approval is granted to this resolution (based on the politicised PCoI and Special PCoI) by passing it in Parliament, it would have the effect of undermining the rule of law, democracy, and the independence of the Judiciary and of several other institutions including the AG’s Department. Furthermore, according to the CPA, the recommendations of the PCoI, if implemented, would lead to the derogation of the rights pertaining to due process and to a fair trial which have been enshrined in and guaranteed by the Constitution. Moreover, the CPA noted that the recommendations may set a bad precedent by deterring officials from taking necessary action in investigating and prosecuting cases which are considered to be politically sensitive, whilst also discouraging witnesses from coming forward due to fear of reprisals. Also, the CPA observed that the outcomes of the PCoI may have long-term implications for the ongoing accountability processes and cause further setbacks to long-delayed investigations and legal proceedings, thereby further entrenching impunity in Sri Lanka. These concerns, the CPA added, are exacerbated by the Special PCoI which provides the institutional framework for a mechanism geared towards targeting individuals and institutions, thereby undermining the ability of such individuals and institutions to uphold the rule of law. The powers of the Special PCoI have a far-reaching impact on the basic rights of citizens, the CPA elaborated. In the opinion of the SC, as delivered by Justice Mark Damien Hugh Fernando PC in Wijayapala Mendis vs. P.R.P. Perera (SC Special Writ Application No. 2/98 – 1999), it was found that the Special PCoI appointed in 1995 to inquire into alleged malpractices in certain government bodies had been in want or in excess of jurisdiction, in breach of the principles of natural justice, and it was also found to contain errors of law on the face of the Special PCoI’s record, and thereby found the Special PCoI’s recommendations for the imposition of civic disability both arbitrary and unreasonable. Moreover, with regard to the Special PCoI into the assassinations of politicians Lalith Athulathmudali and Vijaya Kumaratunga, former SC Judge Justice Anthony Christopher Alles had, according to a newspaper column cum opinion piece titled “Real risks of a Special Presidential CoI” rubbished and rejected the conclusion of the commissioners of the said Special PCoI that a prima facie case had been established against those implicated including former President Ranasinghe Premadasa because they may have had motive, and quoted Justice Alles as pointing out that guilt by motive was completely alien to the established principles of criminal law. “All these measures may have significant implications towards strengthening an already powerful Executive and undermining investigations and judicial proceedings, which will in turn result in a trust deficit in the institutions and processes in Sri Lanka. It is thus incumbent to have greater scrutiny, and debate, and to challenge any action that may contribute towards democratic backsliding in Sri Lanka,” emphasised the CPA.


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