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Is a Presidential Directive By Gotabaya Rajapaksa Needed for the police to “effect arrests only on strict compliance with the law and without undue influence?”


BY

Kishali Pinto Jayawardene

Notwithstanding understandable wrath that Sri Lankans may feel over political betrayals of the Sirisena-Wickremesinghe coalition during 2015-2019, the way forward does not lie in giving sweeping majorities to any political force in the upcoming General Elections.

A despicable political culture

True, the scorching fury of ‘good governance’ being replaced by ‘no-governance’ to the extent that Islamist jihadists were emboldened to strike at hotels and churches on Easter Sunday leaving death and destruction in their wake, is still fresh in the electorate’s mind. But If Sri Lanka’s history is any indication, even the slim victories won in the name of the people was when political power was not centralised in one individual or in one party. The 17th Amendment to the Constitution is a clear example. The fact that politicians could not properly implement its contents speaks to the despicable political culture in this country rather than anything else.

And if atrocious minds playing to the tune of political grandmasters had not muddled the 19th Amendment, its impact on constitutional governance would have been far sharper and more clean cut. As it is and even with its most evident flaws, its reversal of the obnoxious 18th Amendment brought in by a steamroller Rajapaksa (the First) dispensation was only to the good. So Government politicians salivating at the prospect of a decisive victory in the forthcoming General Elections over a Opposition in utter disarray, must not be given their heart’s delight.

One excellent illustration relates to the safeguards afforded in respect of removal of the Inspector General of Police (IGP). Ancillary to the 17th Amendment, it was statutorily provided that the IGP, along with the Attorney General, could only be removed through a parliamentary consensus. Consequent to the Easter Sunday attacks, the IGP who had been shown to be quite unsuitable to occupy that post far earlier, was sent to jail for dereliction of duty therein – but he still remains the IGP, albeit on compulsory leave. This farce has now been played out in public for several long months, with the IGP in handcuffs no less, being periodically paraded and then taken back to detention. Where lies the truth in respect of this astonishing spectacle?

The problem is not in the law

Is it that both parties on either side of the divide in the House cannot bring themselves to activate the statutory process forthe removal of the IGP? If so, what is the hidden reason for this? Quite contrary to what loudmouthed Pohottuwa (Sri Lanka Podujana Party) and Sri Lankan Freedom Party (SLFP) politicians in Government say, the parliamentary removal of an IGP is quite simple. One does not have to screech that the Executive President should be allowed to remove the IGP willy nilly, as it were. It was precisely to prevent that sort of politicised removal that the safeguards in the 17th Amendment and consequent legislation were brought in. The problem here is not in the law. It is in the fact that the political establishment acts as one in not wanting corrupted systems to reform. Who is in power becomes immaterial as a result. Which is the reason as to why, affording sizeable majorities to any one party or power bloc spells the way to sure disaster.

Indeed, the same safeguards afforded to prevent the arbitrary removal of an IGP applies to the Attorney General. This week, we saw the curious sight of the Attorney General ordering the arrest of a High Court judge over telephone conversations that he had with parliamentarian Ranjan Ramanayake. Almost immediately thereafter, lawyers protested in Hulfsdorp against that direction, saying that the direction to arrrest was arbitrary.


Questions raised in this regard are certainly thought provoking.

At the very least, if the direction to arrest was based on phone conversations indicating that ‘political influence’ had led to a judicial officer doing an improper act or abstaining from doing such act, that same logic must apply elsewhere, also in instances of improprieties. For example, the interdicted former Director General of the Bribery and Corruption Commission had been recorded not once but twice in such conversations. In the first of these conversations, we have her virtually pleading with the key suspect in the Avant Garde floating armoury scandal to ‘understand’ why she went ahead with the decision to prosecute. But it appears that the prosecutorial hand is slow to respond in that instance.

Same principle to be followed in general

Following upon this direction to arrest the interdicted High Court judge by the Attorney General, the public was then informed in a further curious development that the Acting IGP had constituted a five-member committee comprising three Deputy Inspector Generals to examine the direction in the context of the case filed in the Magistrate’s court over Ramanayake’s leaked phone recordings. This caution is commendable. In fact, perhaps a permanent committee must review prosecutorial orders to arrest individuals, given the daily doses of shock and awe that Sri Lankans are being subjected to.

After all and this is not wholly in the spirit of heavy sarcasm, why should an arrest order issued against a judicial officer warrant a commitee to look into the matter and not, say a directive of the same nature issued against a medical or legal professional? Or for that matter, an unsuspecting citizen who is arrested for no fault of his or her own? If the principle is the same, then it must be applied equally across the board.

Meanwhile President Gotabhaya Rajapaksa’s recommendation to the police to effect arrests only on strict compliance with the law and without undue influence foists a further layer of ‘Alice in Wonderland’ bewilderment on this entire saga. Are not the police aware of this most fundamental duty laid on them, to effect arrests only in ‘strict compliance’ with the law? Is a Presidential directive needed in this context?

The Supreme Court has established and well known cursus curiae to this effect, cautioning both the Attorney General and the police that arrests on vague suspicions, ‘hoping that some evidence might turn up to make their suspicions reasonable’ is a clear violation of the Constitution. The Court has warned time and time again that vague, general suspicions and the ‘fervent hope’ or even confident assumption that something might eventually turn up to provide a reasonable ground for an arrest will not do’ (for a seminal precedent in this regard, see Rodrigo v de Silva and Others, 1997).

But we are treading on ‘curioser and curioser’ grounds. At the rate that arrests of the ‘highly placed’ are taking place, run of the mill criminals may not find a place in Sri Lanka’s lamentably overcrowded jails. But on a serious note, if this Government wants to show that it was acting without malice and in a spirit of revenge, blowing the ‘Ranjangate’ tapes out of its sordid proportions is not the way to do it.

Sri Lanka’s discerning citizenry must surely recognise this ridiculous diversion for the game of ‘smoke and mirrors’ that it really is.

Courtesy:Sunday Times