The Guest Column

14th April 1996

Repeal SPCI without playing games

by Nihal Jayawickrama

The resolution moved in Parliament last week expressing the view that a 1980 resolution of the then Parliament imposing Civic disabilities on Sirimavo R. D. Bandaranaike "ought not to have been passed" was perhaps the mildest rebuke possible in respect of what was undoubtedly the most retrograde political maneuver in Sri Lanka's parliamentary history.

For Parliament to have stated that the 1980 resolution "ought not to have been passed" because there was pending in the Supreme Court at the time an application filed by Ms. Bandaranaike to quash the recommendations of the Special Presidential Commission of Inquiry was to inflate beyond measure what was virtually a non-issue at the time. Apart from the fact that the law expressly stated that any finding or recommendation of the Commission shall be final and conclusive and shall not be called in question in any court, none of us who were victimized by the system ever imagined then that the very Court from which the Commissioners were drawn would be bold and independent enough to give us any relief. Far from setting right a historical injustice, as has been claimed by the government, there was apparent in this resolution an ill-contrived attempt to cover up the inherent illegitimacy of the mechanism that was employed to lay the groundwork for the 1980 resolution, namely the Special Presidential Commission of Inquiry.

The memories of some in government today must be very short indeed; and others probably had no empathy with those few who were singled out for denigration. Sirimavo R. D. Bandaranaike, Felix R. Dias Bandaranaike and I, in reverse order, were the chosen victims whose past, present and the future were to be effectively destroyed. For us, the issue in 1980 was not whether Parliament ought to have acted while an application to quash was pending in the Supreme Court. That was at best a mild diversion engaged in by those who had no voice and no space.

The fundamental issue was the illegitimacy of the Special Presidential Commissions of Inquiry, its conception, its composition, its procedures and the depths to which its principal actors - the Commissioners, the prosecutors and the witnesses were prepared to sink. If Parliament desires not to humiliate Ms. Bandaranaike but to honour her on her 80th birthday, the least that Parliament can do now is to repeal the Special Presidential Commission of Inquiry Act and spare others in the future the ignominy she was made to suffer under it in the past.

The Special Presidential Commission of Inquiry was the instrument through which then Prime Minister J. R. Jayewardene proposed to break the mould of Sri Lankan politics and assure for him and his government an independent tenure which his predecessors and previous governments had been denied by the electorate. The law to establish the Commission was rushed through Parliament without affording an opportunity for its validity to be tested before the Constitutional Court. With the ostensible object of creating high standards in public life it created the new offenses of abuse and misuse of power, but failed to define them. It was left to the absolute discretion of the Commission not only to define the offenses but also to determine what conduct fell within its own definitions. When the Court of Appeal ruled that this law had no retrospective effect, and that the Commission therefore had no jurisdiction to inquire into the conduct of the previous government, legislation was introduced to invalidate that judgment and to strip the Court of Appeal of any power to give any such judgments in the future.

The Commission was composed of Judges handpicked by the then Prime Minister. Shortly after it commenced its sittings, the Supreme Court was "reconstituted" in an exercise in which 12 Judges whose security of tenure was guaranteed by the Constitution were removed without cause or compensation. Two of the Commissioners were not only appointed to the new Court, but also found themselves way ahead in seniority and enjoying extended terms of office. The third Commissioner, a District Judge, secured a "double promotion" to the Court of Appeal. Patronage was implicit in the selection by the executive of Judges who were willing to actively participate in an exercise designed to further the political objectives of the government in office.

The chief prosecutor was a party lawyer handpicked by the then Prime Minister. To him the Commission abdicated its responsibility of deciding what matters ought to be probed and which witnesses ought to be called. Instead of the inquisitorial procedure of a Commission of Inquiry, it adopted the adversarial procedure of a Court of Law. Yet all the evidence before the Commission was led in the absence of the persons accused. They were neither summoned nor permitted to be present, or even to be represented. The proceedings were broadcast daily at peak hour over the state radio and published in full in the government controlled newspapers. Unchecked by the Commission (indeed, with its active encouragement), the prosecuting counsel who was amply protected by the laws of privileged transformed the Commission into a powerful means of political propaganda and personal abuse. The prosecutor's opening address was described at the time by opposition politicians as "an orgy of character assassination", "a carnival of calumny".

My passport was impounded five months before my trial began, thereby effectively depriving me of the fellowship I held at King's College, University of London. I was given thousands of pages of transcript and asked to formulate my own charges and then answer them. An assurance was demanded of me that I would not cross examine any witnesses or lead evidence in rebuttal as a condition for the release for my passport. When I declined to do so, I was forced to submit to an inquiry which extended from 9.00 am to 1.30 pm, every day, from January to July 1979. Some accusers, like Minister Lalith Athulathmudali and President's Counsel H. W. Jayewardene, had not even given evidence, and when I asked to cross examine them I was admonished for my impudence. My other accusers included the Commissioners themselves, and charges which were later served on me included several based on their own grievances and perceptions of unfair treatment in matters such as the allocation of official vehicles for private use. If my counsel, S. Nadesan Q. C., J C. T. Kotalawela and Faisz Mustapha had not offered to defend me without charging a fee, in the best traditions of the legal profession anywhere in the world, my family and I would have been reduced to penury.

The report of the Commission was published on Christmas eve and the resolution to impose civic disabilities on me was moved before the Supreme Court could resume after its vacation. When Ms. Bandaranaike wrote to President Jayewardene and requested that the constitutional aspects of the procedure which Parliament intended to adopt be referred to the Supreme Court for an opinion in the exercise of its consultative jurisdiction under Article 129 of the Constitution, the latter simply brushed aside the request and engaged in political vituperation.

Mr. Nadesan, on my behalf, challenged the conception, the composition and the procedures of the Commission at every state of its proceedings. Ms. Bandaranaike in her statement repudiating the jurisdiction of the Commission, Felix R. Dias Bandaranaike in his evidence, and I in my own evidence which extended over several weeks, demonstrated how absolutely without any basis the allegations made against us were. Yet none of this material, amply supported by documentary evidence from official custody, was accurately reflected in the report of the Commission. Nor was it placed before Parliament when it was invited to deprive us of our civic rights. If Parliament intends to set right a historical injustice it should cause this material to be published in an alternative report, so that the community may form its own judgment on a proper appreciation of all the facts.

The 1980 resolution of Parliament has already been effaced by the unsolicited free pardon given us by President Jayewardene. It made no sense to assert now that it "ought not to have been passed." The Special Presidential Commission of Inquiry was not about law and legal niceties. it was a direct assault on human dignity. It has pained me even to recall the event of that period because it was not only I who suffered; they left scars on members of my family who are now no more. Speaking for myself, the resolution which Parliament has passed only compound that injury and injustice.

Return to the Editorial/Opinion contents page

Go to the Guest Column Archive