Kishali Pinto Jayawardene
The ridiculous claim being parroted by bespectacled and grinning supporters (apparently also lawyers) of the ruling Sri Lanka Podujana Party (SLPP or the “Pohuttuwa’), that the action of the Attorney General is somehow ‘superior’ to the writ of a Magistrate in the making of arrests of persons in this land, is contrary to the weight of the law and violates fundamental safeguards against arbitrary state action.
Challenging patently absurd statements
These claims are made in the context of this week’s surprise arrest of former Minister and Jathika Hela Urumaya heavyweight Champika Ranawaka when the police entered his residence and effected the arrest on a direction made by the Attorney General. The fact that this arrest was carried out without properly notifying the Speaker of Parliament has been formally raised by the Office of the Speaker.
But the instant point here is the entirely presumptous statement that, ‘there is no issue about not informing the Magistrate because the Attorney General is superior to the Magistrate (‘no law violated in arresting Patali’, Daily Mirror, 20 December 2019). In other words, because the Attorney General ordered the arrest, there was nothing that the Magistrate could have done or need to have done in this regard.
Such absurd statements must be challenged forthwith. Otherwise, this would be to throw to the four winds, decades of carefully reasoned constitutional jurisprudence by the Supreme Court. It would be to reduce Sri Lanka to the level of a nation-state just emerging from barbarism. It is to insult the Sri Lankan public and to render the Rule of Law to a cipher. Most awfully, it is to confer an enormous amount of arbitrary power on the state law office.
This is quite distinct from the prevalent pattern where Magistates do accord (sometimes arguably undue) deference to a direction of the state law officer when an arrested or detained person is brought to court. Indeed, this judicial deference has led to the process of arrests and detentions in Sri Lanka being pockmarked by irregularities.
Careless and at times, negligent directions by state law officers in the handling of criminal files are not rare. Some of these cases have been brought to the Supreme Court and rectified through public interest litigation. But many victims including doctors and accountants have preferred to suffer injustices in silence rather than court the publicity of a legal challenge where their reputations would be further maligned. So to be clear, the ‘Pohottuwa’ reasoning is dangerous in that, it goes beyond the political personality implicated in this instant case and impacts negatively on the criminal justice process as a whole.
What is the magic formula for the law to be suddenly invoked?
Where this incident is concerned, the former minister’s arrest was in relation to a traffic accident in 2016 which left a young man critically injured and in regard to which, the driver of the then minister’s vehicle had surrendered to court. His Opposition colleagues have protested that the evidence presented before the court by the Welikada Police at the time did not implicate the former minister even though the victim’s relatives cried foul at the time. But the questions that concerns the public is very simple.
By what magic formula is it that, suddenly the police and the Attorney General wake up to carry out the arrest of the former minister, weeks after the coalition of which he was a part, is thrown out from power? Did ‘new’ evidence miraculously surface consequent to allegations by the Opposition that the family members of the former minister’s driver had been ‘abducted’ and ‘coerced’?
Or is it that politicians get arrested for crimes in Sri Lanka only when they are ejected into the Opposition? The question is not the acts or omissions of politicians who we would all agree, are beyond redemption but the culpable manner in which the wheels of justice turn, aided and abetted by compromised institutions of law enforcement. That is an evil not limited to the current rulers but comprises an endemic part of Sri Lanka’s compromised justice systems.
In early October this year, it was under the ‘yahapalanaya’ regime that an outrageously bad Inspector General of Police was arrested for assaulting a hapless subordinate who had been operating the lift at the police headquarters. This was in relation to an incident which had occurred as way back as in 2017. But no action was taken against the IGP at the time despite considerable public outrage. It was only after this public official fell into utter disgrace that the arrest was carried out. But was the law sleeping all that while, for more than two years?
Criminal justice reforms left hanging
To return to magisterial checks that must be enforced on the use of powers by the state law office, these are reforms that should have been usefully pursued during the ‘yahapalanaya’ period by the Bar Association without its key officers running around holding highly funded conferences on the Rule of Law which proved to be of no earthly use finally. Insulating the Office of the Attorney General from political pressure had been a key focal reform point in decades. Meticulous studies had been carried out illustrating why this is required as crucial not only in ‘hard’ cases of political abuse of the law but also where the run-of-the-mill criminal process is concerned. Yet, nothing happened. As the United National Party (UNP) now in Opposition issues bitter criticisms of the arrest of its key alliance politician, it has only itself to blame.
Even so, the larger problem is the gradual undermining of the Rule of Law. Sri Lankan jurisprudence has settled precedents in which the Supreme Court has advised extreme caution on the making of arrests and detentions by police officers who must do so on objective grounds and with valid reasons for the arrests. Even where arrests have been made under emergency law, the Court has strictly applied these principles, declaring that ‘…the exigencies of dealing with such crimes cannot justify switching the notion of reasonableness to the point where the essence of the safeguard secured by Article 13 (1) of the Constitution is abrogated” (Sunil Rodrigo on behalf of Sirisena Cooray v Chandrananda de Silva and others, 1997).
These safeguards have been stressed ad nauseam by the Court. Yet these warnings appear to have little impact. We are back to Ground Zero as a result. So adoption of the justification that the Attorney General is ‘above’ the Magistrate is an ‘Open Sesame’ to violation of the Rule of Law. It renders the court to the level of a mere spectator, rubber stamping the dictate of the Attorney General. Is this how Sri Lanka is to be governed in the years ahead? If so, we might as well dispense with the Constitution, the Penal Code and other ancillary laws.
And to complete the grim cycle, let us dispense with the sitting of courts as well.