C.A.Chandraprema

July 21, 2018, 12:00 pm

In recent days, there has been much hype about the permanent High Court Trial-at-Bar that was instituted recently with the passage of amendments to the Judicature Act by the yahapalana government. The openly stated purpose of these amendments that were brought to the Judicature Act was to expedite cases against members of the previous government. From the news coming down the grapevine, we hear that the government is indeed preparing to direct cases against members of the Rajapaksa government to the Chief Justice to be referred to this Special High Court. The Sunday Times of 15 July 2018 stated that the former Sri Lanka Insurance Corporation chairman Gamini Senarath and its Managing Director Piyadasa Kudabalage will be the first to be indicted before the newly set up court. Senarath was the chief of staff of former President Mahinda Rajapaksa.

The photo that accompanied the AFP story titled “Sri Lanka sets up special courts for Rajapaksa-era graft” of 31 January 2018 which was published in newspapers across the world including the Daily Mail in Britain.

We have heard that the AG has forwarded to the Chief Justice, a list of ten cases to be taken up by this special court. This raises many questions that will have far reaching implications for the independence of the judiciary. About a month ago, the Court of Appeal transferred a case involving former minister Mahindananda Aluthgamage out of the High Court presided over by Judge Gihan Kulatunga in response to a transfer application filed by the former. The Appeal Court held that ‘there is a fair reason’ to believe that this matter should be transferred from High Court Judge Gihan Kulatunga to another court. Aluthgamage had stated in his transfer application that High Court Judge Gihan Kulatunga was a member of the Presidential Commission (PRECIFAC) which initiated an inquiry against members of the former regime and that he would therefore be denied a fair trial. Serious questions were raised in this column some time ago about Judge Kulatunga’s judgment in the ‘Sil redi’ case involving Lalith Weeratunga and Anusha Pelpita.

The Appeal Court obviously recognized that the country could not afford another ‘Sil redi’ controversy. The Judiciary is already under siege, with government ministers like Ranjan Ramanayake and legal practitioners like Naganada Kodituwakku and Sugandika Fernando openly questioning the integrity of the judiciary and the legal profession itself. The Bar Association of Sri Lanka is also engaged in an attempt to uphold the respect of the legal profession and the judiciary. It is in this context that this Special High Court is to commence work. The very reason why the Judicature Act was amended by the present government was to set up a special court to hear cases against their political opponents. The original draft of the amendment to the Judicature Act sought to empower the Attorney General or the Director General of the Commission for the Prevention of Bribery and Corruption to institute criminal proceedings in the Permanent High Court at Bar. This provision was however challenged in the Supreme Court and the amending Bill was altered. According to the law as it stands now, The Attorney General or the Director General of the Commission for the Prevention of Bribery and Corruption will have to refer the information relating to the offence to the Chief Justice for a direction whether criminal proceedings in respect of such offence shall be instituted in the Permanent High Court at Bar.

Public perception of the Special High Court

Even though the discretion to make the final decision whether to direct that proceedings be instituted in the permanent High Court trial at bar now lies with the Chief Justice, it is still the Attorney General or the Director General of the Commission for the Prevention of Bribery and Corruption who will decide which cases are to be referred to the Chief Justice. In making such decision the Attorney General or the Director General of the Commission for the Prevention of Bribery and Corruption are to take into consideration the nature and circumstances, the gravity; the complexity, the impact on the victim, or the impact on the State, of the offence. The CJ is required to select cases to be referred to the Special High Court only from those referred to him by the Attorney General or the Director General of the Commission for the Prevention of Bribery and Corruption and the latter in turn are restricted their selection of cases by the schedule to the Judicature Act introduced by the amendment which restricts these cases to those involving financial matters. This has now been passed into law.

However, as ordinary citizens we have to question why only financial matters have been singled out for prosecution in this special High Court. How is it that cases relating to serious crimes like multiple murders, rape-murders, armed robbery and murder are considered to be of a lesser order and sent through the normal channels whereas financial matters have been given priority by this amendment to the Judicature Act. Other than the government’s need to put their political opponents in jail, was there any conceivable reason for the setting up of this Special High Court and to restrict its applicability to financial matters only? While it is true that the law has now been passed, the final discretion to refer cases to this Special High Court still lies with the Chief Justice. The question why this special court was set up in the first place will be a matter that the Chief Justice will have to give thought to. What does the public think about this Special Court? The following is what the media has been saying about the setting up of this Special High Court.

Daily Mirror (Sri Lanka)

The Daily Mirror carried an article titled “Justice delayed, justice denied: Verdict from the people’s court” dated 14 February which stated as follows: “There is a feeling among a section of the public that the law’s delays were one of the reasons for widespread public disapproval, disappointments and even anger which led to a massive protest vote against the government at the February 10 elections to 340 local councils. It was an important aspect of the verdict given by the court of the sovereign people. During the campaign for the January 8, 2015 presidential election, the then rainbow coalition leaders alleged that the Rajapaksa government’s VIP politicians, top officials and lackeys had plundered billions of dollars from public funds. But more than three years after taking office, the number of cases brought to courts has been few with the delay being attributed to various reasons…As for streamlining and expediting the courts procedure relating to serious cases of corruption or fraud, what should have been done in 2015 was presented as a draft bill only last week….the Prime Minister has said he hoped the number of these special High Courts could be increased to five…”

Press Trust of India

A Press Trust of India report titled “Special High Court to start hearing cases from July 4” dated 13 June 2018 stated as follows: “Sri Lanka’s first permanent High Court Trial-at-Bar, set up to expedite the high profile corruption cases against former government, will start hearing cases related to money laundering, graft and financial crimes from July 4, the Cabinet spokesman said today. Last month, Parliament had passed the Judicature (Amendment) Act, brought by the government to pave the way for setting up of special high courts to expedite hearing of corruption cases against former President Mahinda Rajapaksa’s administration, his family members and their associates.”

Agence France Presse

AFP published a story under the title “Sri Lanka sets up special courts for Rajapakse-era graft” on 31 January 2018 which stated as follows. “Members of the administration of former Sri Lankan president Mahinda Rajapakse are accused of stealing vast sums from government coffers. Sri Lanka is to set up special courts to investigate charges of corruption amounting to billions of dollars under former president Mahinda Rajapakse, the government said on Wednesday. The move, designed to accelerate the process of trying such cases, follows criticism over the slow pace of justice under the government elected three years ago. President Maithripala Sirisena came to power in 2015 promising to stamp out corruption and punish members of the former administration accused of stealing vast sums from Sri Lanka’s coffers during Rajapakse’s decade in power.”

Reuters

Reuters filed a story titled “Sri Lanka parliament backs special courts for bribery, corruption cases” on May 9, 2018 where they said “Sri Lankan parliament on Wednesday approved a new law to establish courts to handle cases related to bribery and corruption to speed up cases that have dragged on for years… ‘Parliament has responsibility over public money and all members have a right to take legal action against the people who wasted it’, Justice Minister Thalatha Atukorale told parliament. She said there was a perception that some suspects had not been ‘brought to book’.  Her comments appear to be aimed at former officials who served under former president Mahinda Rajapaksa and his family members, who President Maithripala Sirisena’s government accuses of misappropriation of public funds. Several members of the Rajapaksa family are facing police probes for alleged financial crimes, but none have yet faced trial…”

Outlook (India)

Outlook, the Indian newsmagazine had this to say on 13 June 2018 about these Special Courts.”Sri Lanka’s first permanent high court, set up to expedite the high profile corruption cases against former president Mahinda Rajapaksa’s administration and his family members, will start hearing cases related to money laundering, graft and financial crimes from July 4, a senior Cabinet minister said today. Last month, Parliament had passed the Judicature (Amendment) Act, brought by the President Maithripala Sirisena government to pave way for setting up of special high courts to expedite hearing of corruption cases against the Rajapaksha’s administration, his family members and their associates.”

Prosecution or persecution?

There is no need to labour the point further. A limitless number of press cuttings and video clips can be presented to show what the government’s intention was in amending the Judicature Act. It will be observed from the foregoing that there is literally no one in the whole wide world who believes that this Special High Court was set up in Sri Lanka for any purpose other than putting the Rajapaksas and their loyalists in jail. This is a clear case of changing the law to make the Judiciary an accessory to the main political project of the yahapalana government. Even if there is a mix of Rajapaksa related and non-Rajapaksa related cases that are directed to this Special High Court, it will be obvious that the non Rajapaksa related cases have been included for window dressing purposes. Such window dressing will in fact make the subordination of the judiciary to the political needs of the government even more manifest. In the past, when the government of the day had an axe to grind against their opponents and were very keen to fix them, special tribunals were set up outside the ordinary courts system to do the required work.

The Criminal Justice Commission which was set up by a special Act of Parliament in 1971 to try JVP insurgents because it was difficult to convict them under the ordinary criminal law, is once such instance. The Special Presidential Commission of Inquiry set up by the J.R.Jayewardene government to deprive Mrs Bandaranaike and some other members of her government of their civic rights is another such instance. Both these institutions were mired in controversy but those controversies did not affect the Judiciary all that much because they were not part of the ordinary courts system in the country. What is envisaged now however is the creation of a politically motivated special court within the ordinary courts system. The new amendment seeks to make even the Chief Justice a party to referring selected cases to this court. The functioning of this permanent High Court trial at bar will therefore do permanent and irreversible damage to the image of the judicial sytem in this country.

The situation is compounded by the fact that cases will be referred to the Chief Justice by an Attorney General and a Director General of the Bribery Commission recommended by the highly tainted Constitutional Council which is made up only of yahapalanites who were all on the same platform opposing the Rajapaksas at the 2015 presidential election. This yahapalana Constitutional Council was formed after Maithripala Sirisena became President and Ranil Wickremesinghe became Prime Minister and the TNA and JVP took over the opposition and stuffed the Constitutional Council full of their nominees. The yahapalanites in the Constitutional Council in turn have been stuffing all the high posts and independent commissions with fellow yahapalanites. Any list sent to the Chief Justice by the AG or the Director General of the Bribery Commission will therefore be tainted with prejudice if it includes any cases pertaining to Rajapaksa loyalists because all yahapalanites are opposed to the Rajapaksas.

Besides, there will be hundreds of cases pertaining to financial matters. On what grounds will the Chief Justice determine that one case merits reference to the Special High Court whereas another case pertaining to a very similar offence will be directed to the normal courts system? What is the critera that will be used to depart from the norm? The celebrated Robert H.Jackson a former Attorney General of the USA and chief prosecutor at the Nuremburg trials following World War II had the following to say about the power of the prosecutor.

“The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations….The prosecutor can order arrests, present cases to the grand jury in secret session, and on the basis of his one-sided presentation of the facts, can cause the citizen to be indicted and held for trial…While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst…There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community…If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.

“With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies…”

No one in this country will deny that after the change of government in January 2015, it was a case of naming the suspects and then looking for any offence they may have committed. Special investigating bodies like the FCID were set up to receive complaints from a committee of yahapalana ministers, parliamentarians, political party leaders and NGO heads and to conduct investigations accordingly. Most of the cases against the Rajapaksas were investigated by this politically guided special police unit. Readers will remember that it was not on the various allegations that were mentioned on the public platform at the 2015 presidential election that cases were finally filed against the Rajapaksas and their loyalists. Various wild allegations were made during the election campaign. The yahapalanites started looking for actual evidence of wrongdoing only after capturing power.

Shortly after the change of government in 2015, this writer interviewed President Maithripala Sirisena’s advisor Shiral Laktilleke who runs an Anti-Corruption NGO along with another Presidential advisor Ulapane Sumangala thera and Ranjith Keerthi Tennakoon. Their NGO was at that time publishing newspaper advertisements asking people to come forward with details of the corrupt dealings of the previous government. In the course of the interview, this writer asked Laktillake why they were asking the people to come forward with details at this stage, – they were supposed to have had irrefutable proof of Rakapaksa corruption before the election. To this Laktilleke replied that people were too scared to come forward with details when the Rajapaksas were in power. So what we had in reality were complete lies being uttered from the election platform.

After capturing power, the yahapalanites set about trying to look for evidence to file action against the Rajapaksas. The establishment of the Special High Court by amending the Judicature Act is the latest part of the same game. Thus the whole process from beginning to end is tainted. The question now is whether the Sri Lankan Judiciary should get drawn into the political gameplan of the yahapalana government?