The puzzle of Lanka's 'Missing" admiral and other strange stories

Will we see the Attorney General filing a fundamental rights petition in the Supreme Court against the failure of the acting Inspector General of Police to ‘ immediately’ file charges against an interdicted High Court judge who had engaged in phone conversations with a parliamentarian, allegedly amounting to an attempt to fabricate evidence?

Strange happenings in this isle

This wry query is not merely posed tongue- in- cheek as it were. Sri Lanka has seen stranger things, including an interdicted Inspector General of Police (IGP) put in jail for months over dereliction of duty in the 2019 Easter Sunday jihadist attacks and only last week granted bail but who, in all that is wondrous, remains the IGP of the country. Parliament, it seems, in all its collective wisdom, ( or lack thereof which is more the case), has not seen fit to bring in the statutory removal process for this IGP. Instead, the Pohottuwa and Sri Lanka Freedom Party (SLFP) bright lights, ( I use that term in its most caustic sense), lambast the 19th Amendment for not ‘ permitting’ the President to remove the IGP.

This is a convenient glossing over of the fact that the 19th Amendment had nothing to do with the matter at all. It is the Removal of Officers (Procedure) Act (2002) which brought in statutory safeguards in respect of the removal of the IGP and the AG, akin to the parliamentary process regarding removal of superior court judges. That was close to thirteen years before the 19th Amendment. And yet, these characters, including the General Secretary of the SLFP who is himself a lawyer, had no qualms in brandishing the 19th Amendment in front of television cameras and blaming it for the IGP stand-off in the rup up to the 2019 Presidential polls.

This formed part of their ‘whipping boy’ strategy to banish the 19th Amendment to constitutional limbo. Now that an uneasy coalition of the Pohottuwa and the SLFP has grabbed the reins of power, what does the current Government have to say about why it does not initiate the statutory removal process of the IGP perchance? That is a question that must be asked.

That ‘missing’ Admiral and the law

And then, in this litany of strange happenings, we have the first time (as observed last week) that a fact- finding Commission of Inquiry has seen fit to direct the AG to ‘halt’ prosecutions in an ongoing prosecution. This highly controversial case of the abduction of Tamil and Muslim children allegedly by high state officers between 2008 and 2009 who were held in navy bases in Trincomalee and Colombo before being ‘disappeared.’ To add to this, there is the puzzle of the ‘ missing’ Admiral, cited as a key person of interest in this case who has not appeared in court despite summons being repeatedly issued on him. Reportedly, Admiral Wasantha Karannagoda, Sri Lanka’s former navy commander has also not appeared before the Commission of Inquiry

But, returning to the current dispute between the Attorney General ( AG) and the acting IGP, the AG has, in expressing displeasure about the failure to charge the interdicted High Court judge, reminded him of the duty to abide by the constitutional imperatives in Article 12 of Sri Lanka’s Constitution regarding all persons being ‘equal’ before the law coupled with the duty towards non-discrimination. One is tickled pink, as they say. There is a constitutional irony here that is too rich to be missed. So we have one arm of the State ( chief legal officer) advising the other arm of the State (chief albeit acting law enforcement officer) to act according to the Constitution. The annoyance of the AG is evidenced by the fact that, instead of jumping to obey as the police would generally do on a direction of the AG as many luckless citizens have experienced to their cost undergoing miscarriages of justice, this time, it is different.

We were first told that the acting IGP has constituted a committee to look into the AG’s directive. It appears that the police has adopted the time dishonored tactic of the leader of Sri Lanka’s main opposition, the United National Party, to appoint a committee as time-saving until the heat dies down. Thereafter, it seems that the police have put forward the remarkably novel argument that they are not sure of the jurisidiction of the case or in other words, in what court should the charges be filed.

The executive quoting the law

However, the AG, whose approach strongly brings to mind, the relentless pursuing of hounds in search of their terrified prey, has not given up easily. Castigating the police for failure to act, he has reminded them that questions regarding jurisidiction et al could have been clarified from his office. As to how this saga will unfold remains to be seen. But this matter of the Constitution and the law being cited by one arm of the executive to ‘advise’ its other arm is a curious thing.

Not so long ago, President Gotabaya Rajapaksa also quoted the law but with a seemingly different emphasis as he advised the acting IGP to carry out arrests ‘ only when absolutely necessary and upon a decision taken with utmost care and in strict compliance of the law.’ In fact, the statement issued by the Office of the President at the time, pointed out that arrests of individuals results in the serious deprivation of liberty of citizens, loss of reputation and standing in the society.’ Thus, it was observed that ‘ due respect should be given by officers discharging such duties to the Members of Parliament as representatives of the people and professionals...’

Here too however, it was pointed out that the law should be applied equally to all citizens without any discrimination whatsoever. Arrests should not be carried out for extraneous purposes and without undue influence, the President said. The point however, is that whether it is the AG or the President who issues these injunctions to the police, the not- so- subtle message in these missives are aimed at the public, not the actual targets named as such.

A fundamental dysfunction in government

To the extent that the police is presumed to know the Constitution and the law under which it acts, these communications speak to a fundamental dysfunction in government, a dilemma that Sri Lanka is long familiar with, regardless of who is in power. Police has always remained the plaything of politicians and at times, the hapless object of pressure from both sides or all sides.

This is what brings us to the importance of effective oversight mechanisms that soberly evaluate the work that the police is expected to do, within the confines of the law. This is different from various arms of the executive quoting the law and the Constitution in calling upon the police to do or not to any official act. Despite a good propaganda campaign being carried out demonising the 19th Amendment in all its aspects instead of focusing on only the problematic provisions and even targeting the 17th Amendment which was perhaps the one amendment, genuinely brought to strengthen peoples’ power against the political establishment, the ideal of independent institutions should not be destroyed.

Regardless of the limited success of such efforts, that ideal should not be lost sight of.