Focus on Rights

Of legal charades and other things
We experience now, the run-up to an election in which all right thinking people in Sri Lanka will emerge as losers despite whichever political party wins the right to mis-govern this country. And one is led increasingly to speculate as to when a critical mass of opinion will, (again?), form itself in opposition to the legal charades that are being played out in this regard, inextricably linked as they are to the ongoing political charades. Inevitably, the majority of good men and women in our midst are content only to voice deeply troubled opinions on these issues.

They refrain however from transferring these opinions from the personal to the public sphere. Therein lies the origin of our present predicament, summed up by none other than the old adage regarding the evil that is done when the good stay silent.

For example, the manner in which the Vijaya Kumaratunge assassination commission report is currently being employed in the public sphere is a good indication of how deeply troubled our processes of law and accountability have become. The fact that our tax money is being employed in this regard by reason of the nauseating, (and still undoubtedly unpaid), advertisements telecast over state television is no small factor either. In general, the whole is a measure of the intricacies involved in retrieving legal accountability in this country to some measure of sanity. That the process demands far more than individual change is, now without a doubt.

Throughout the years, the many purposes for which the Kumaratunge Commission Report has been employed, are nothing short of remarkable. The volatile nature of these purposes reflects the absurdity of the entire process and encapsulates both, the subversion of the law as well as the damning silence of those vested with the duty and indeed the obligation, to protest. In the alternative, the capturing of the public space in this regard by political voices has reduced the whole to a fractured political debate, with serious consequences to the people. This is a responsibility that many intellectuals in Sri Lanka have discarded with an ease that is remarkable in its self-obsession.

Much of the subversion of the Kumaratunge Commission Report results from the fact that the Report itself, (a troubling portion of which, incidentally, was devoted to appreciation of Kumaratunge's physical beauty), is highly problematic in its insecure, if not partisan, inquiry processes and uncertain findings. To recapitulate its conclusions, a prima facie case was found against former President Premadasa and then Defence Minister Ranjan Wijeratne of indirect involvement in the assassination of President Chandrika Kumaratunge's husband on the 16th of February 1988. The killing occurred during the waning months of the Jayawardene administration when the country was gripped by subversive terror initiated by the Janatha Vimukthi Peramuna (JVP) in their efforts to bring down the government and a countering state terror.

The findings of the Kumaratunge Commission were strongly critiqued and with just reason. The Commission found no evidence sustainable in law linking the former president or his minister with the killings. In other words, it was an indictment by speculative default, a phenomenon totally outlawed in criminal law. Writing to the newspapers at that time, former justice A.C. Alles, among others, pointed out that the reasoning of the Commission appears to be that since Premadasa succeeded in being elected as president, he must have had a hand in the liquidation of a political rival. This, he pointed out, "…is a concept completely alien to established principles of criminal law."

Overall, the Commission preferred not to consider that Vijaya Kumaratunge had been, in fact, killed by the JVP. Evidence led before the Commission inclined towards this conclusion, when for example, Lionel, the prime suspect, admitted in his statement that he had been contracted to kill Kumaratunge by the JVP. The Commission however rejected his evidence on the basis that police officer, Chandra Jayawardene, who took down the statement was an unreliable witness. Similarly, the Commission bypassed evidence of JVP death threats against Kumaratunge both verbally and in their leaflets. Kumaratunge, a hero figure for the youth at that time, was perceived by the JVP as a traitor as well as an emergent threat.

The critique of the Commission findings was set within the essentially defective framework of the Special Presidential Commissions of Inquiry, (SPCI), law itself, with regard to which adverse comments had once, consistently been made by a number of bodies including the Civil Rights Movement. An important part of this critique was that the law allowed commissions appointed under it, to disregard normal cautionary rules of evidence and permit third party statements to be admitted as evidence, without the makers of those statements themselves coming before the tribunal.

These critiques were strengthened by the fact that the Supreme Court had, subsequently, set aside findings of other commissions appointed under this law in regard to other high level political assassinations, as being flawed, unreasonable and in breach of the principles of natural justice. Thus, norms of criminal culpability were stipulated as being certain, rather than taking different shades depending on who applies them. The task of the Court in all these cases, where the findings of numerous Commissions were challenged mainly by police officers and politicians against whom action had been taken on the basis of the findings, was made all the more difficult by the fact that sitting senior judges had been appointed by the Presidency to head many of these commissions.

Two notable examples were the Kumaratunge Commission (presided over by then Supreme Court justice and presently Chief Justice Sarath N. Silva) and the Lalith Athulathmudali Commission, of which members included Supreme Court Justice Tissa Dias Bandaranayake as its Chairman and from which the two other members, then Appeal Court Justice D.P.S. Gunesekera and then High Court Judge N.G. Amaratunga resigned in what was widely believed to be protest at the political manipulation of the Commission. These disputes highlighted the problematic nature of the Commission processes.

As far as the Kumaratunge Commission Report was concerned, its emotive and highly challenging conclusions have been utilised in various ways since its release. During the period of the previous Peoples Alliance (PA) administration, the then government organised a "JVP terror exhibition" where for the first time since coming into power in 1994, the PA acknowledged the nature of the creature that the State confronted in the late 1980's. Intermittently, of course, it preferred to take the findings of the Report at its face value and blame the UNP, which exercise is presently being indulged in, at our expense. Actual investigations into the killings have been sporadic.

What is poignant is that political and selectively targeted witch-hunts replaced institutional reform that might have been greatly corrective in restoring steadfast principles of legal accountability. Useful recommendations made in the Kumaratunge Commission Report that an independent investigative authority be set up to monitor police inaction/abuse as well as controversial political killings, were ignored for more than ten years. We have a belated attempt at redressing this in the National Police Commission, which still, however has to justify itself in its responses to public complaints against the police.

An attempt made by the UNF government to abolish the SPCI law in the recent past, was also abandoned due to objections by the office of the Presidency, which saw it as an attempt to lessen the powers of the present incumbent. We see now, another fresh turn of the charade playing itself out.

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