On the folly of high profile cases going nowhere in Sri Lanka

There is a richly sardonic quality to For mer President Mahinda Rajapaksa’s thundering injunction this week that Sri Lanka should hold a parliamentary probe into allegations emerging out of the mouths of two Solicitors General that court cases against the Rajapaksa-led Sri Lanka Podujana Party Presidential candidate Gotabaya Rajapaksa were ‘politically motivated.’

Circus performances for public benefit

Let us be clear at the outset. These are carefully choreographed public shows, each event succeeding the other with deliberate intent. They are as absent of genuine concern for the democratic process as much as the sanctimonious expounding by a former Professors of Law and a former Chief Justice on the importance of the Rule of Law while disregarding the fact that they themselves played a hideously huge part in casting that ideal to the gutter. Yet these truths are not forgotten by a discerning public who look at the circus performances enacted in front of them with contempt and dismay.

For facts are facts. And the truth must be acknowledged, however distressful this may be. The former President’s remarks related firstly to Dilrukshi Dias Wickremesinghe’s strategically leaked phone conversation with Avant Garde Chairman Nishshanka Senadhipathi. Here, the now interdicted Solicitor General, (the second highest senior state law officer in the land) is heard expressing her regret over the case lodged in respect of the Avant Garde floating armoury scandal and her distaste for the country’s ‘ kalakanni’ ( cursed) political culture. This is sourced as the reason for the case to be lodged when she was Director General of the Bribery and Corruption Commission (CIABOC). Her distasteful remark during this conversation that ‘she can break or make the law’ made sensational headlines in Sri Lanka’s media.

Secondly, Rajapaksa’s reference was to a recent interview given by Wickremesinghe’s predecessor, Suhada Gamlath where he claimed that political pressure was brought upon him by two ‘yahapalanaya’ Ministers to file indictments against the former Defence Secretary in that same case but that, unlike Wickremesinghe, he had not succumbed to the pressure. His complaint was that consequently, he had lost his promotion to the post of Attorney General. The fact that Gamlath was photographed sitting in the audience of pro-SLPP types at a propaganda rally of the Rajapaksa candidate, while holding the position of Chair of Sri Lanka’s largely dormant Victim and Witness Protection Authority was widely carried in the state media as a discrediting exercise thereafter.

Boring and predictable propaganda

But this to-and-fro of competing propaganda in the Presidential stakes is boring, predictable and far from interesting. Nothing of this is very new. Frankly it only elicits a snigger or two regarding the misplaced enthusiasm of ‘yahapalanaya- ists’ who lauded Wickremesinghe as the unfairly targeted scapegoat of President Maithripala Sirisena when he pitched into her for launching prosecutions from the CIABOC at the instigation of United National Party (UNP) front-liners in late 2016. Her resignation took place thereafter, with her return to the Department of the Attorney General. In hindsight, it now appears and must be acknowledged as such, that there was more than a germ of truth in the biting denunciation by the President at the time. Ironically, many CIABOC prosecutions against key corruptors of the previous regime have been tossed out of court due to faulty indictments and other technical issues.

At the time that this dispute occurred, the media was inundated with news and comments, again carefully choreographed this time from the ‘ yahapalanaya’ side, advising the President to let independent Commissions function as they should. To my recollection, the Janatha Vimukthi Peramuna (JVP) hailed Wickremesinghe as the next best thing to Sri Lanka’s prosecutorial Joan of Arc. These mistakes of judgment are startling in retrospect. Perhaps the distasteful imbroglio over the leaked recording may teach discretion to enthusiastic flag bearers of good governance not to embark on crusades supporting flawed public servants in ignorance of obvious contradictions.

Yet this was a characteristic of the post-2015 years, where howls of protest arose when there was any criticism of ‘yahapalanaya’ acts. Wickremesinghe’s conversation is telling both for the extreme familiarity in which she engages with a suspect in an ongoing criminal matter of the highest sensitivity which is contrary to all norms of prosecutorial neutrality and for the contempt if not sheer arrogance with which she says that she can ‘break the law and make the law.’ That last comment is, in fact, true. As the poor languish for jail for years for commonplace crimes, the Attorney General’s lack of due diligence in supervising the prosecutorial process results in innocents being dragged to jail. Meanwhile, the rich and the powerful get off without penalties.

‘ Kalakanni public servants’?

Sri Lanka’s crisis of governance is due not only to this ‘kalakanni’ political culture but also officers of the state who do not administer the law equally. Similarly, independent commissions are essentially as independent as the people who handle them. It is as simple as that. In fact, much of these convulsions have been brought about by ‘yahapalanaya’ mishandling of crucially important legal processes, as colluded in by civil society leaders who became giddy with excitement in being thrust ‘into high places.’ That is the brutal reality.

But that said, the political pressure applied on the Department of the Attorney General during the Rajapaksa decade exceeded any similar coercion at any point, before or after. Indeed, if a Rajapaksa directive was disobeyed by the Attorney General, the responsible state officer may be sure of having to meet a fate a hundred times worse than getting passed over for a promotion. This was why, during that decade, no directive issued by the President or his brother was disobeyed. In fact, the Attorneys General of those times fell over themselves to obey the Rajapaksa diktat.

Indeed, as pointed out several times in these column spaces, if the law had been allowed to take its course and former Chief Justice Mohan Peiris had been impeached instead of being tossed out on his ear to the hurrahs of the Bar Association and other ‘ constitutionalists’ by a Presidential letter, these repulsive happenings would have been a matter of public record. That Rajapaksa coercion of the legal process was never actually systematically documented in a legal process is highly regrettable.

Election campaign must focus on systemic failures

So as Sri Lanka heads towards a suspenseful Presidential election in a little more than a month, only scandals unrelentingly occupy the public space. Very little sense can be heard over the cacophonous clash of rude political ambitions and crude propaganda. In fact, the candidature of former Secretary to the Ministry of Defence, Gotabhaya Rajapaksa by the Rajapaksa- led alliance clustered around the ‘Pohottuwa’ party has succeeded in dumbing down the debates to a pure effort to prevent the return of past Rajapaksa darkness. There is no sober and sensible discussion on systemic failures.

The United National Party (UNP), reimagined or reinvented as it may be under Sajith Premadasa, must account for the curate’s egg ‘ yahapalanaya’ record in this regard. Premadasa must meet probing questions with vigor rather than limit himself to anodyne pronouncements that, under ‘his Presidency, the law will be allowed to operate without fear or favour.’ These tired clichés have been heard many times before. The younger Premadasa needs to apply his not inconsiderable talents to taking the proverbial bull by the horns and tackling Sri Lanka’s crisis of faith in the Rule of Law, as strongly as he addresses the ‘poverty gap.’That is essential.