Kishali Pinto Jayawardene
What does the summoning of Sri Lanka’s celebrated cricketers to appear before a special investigation committee of the Ministry of Sports tasked to inquire into a wild allegation by a former Sports Minister that the 2011 ICC Word Cup cricket final was ‘fixed’ have in common with the ad hoc appointments of Task Forces and Commissions of Inquiry?
Riddle of the Rule of Law
This may seem like the fabled riddle of the Sphinx which, as the ancient legend has it, used to sit outside the city walls of Thebes and ask riddles of anyone who passed by. The most noted of these was the question as to “what goes on four legs at dawn, two legs at noon, and three legs in the evening?” Those who could not answer were fated to die by the monster. That is, until Oedipus responded correctly by saying, ‘”man, who as a baby crawls on four legs, then walks on two legs as an adult and in old age walks with a cane as his third leg…,” whereupon it was the Sphinx which became so enraged that it immediately committed suicide.
Those who wish this country well may indeed hope and pray that the citizenry will answer the riddle of the Rule of Law that we face as correctly as Oedipus so that modern political monsters may be consigned to a similar electoral fate as the Sphinx. For answering this riddle at least is not that complicated as the Greek myth. Ridiculous allegations relating to a match played nine years ago by a politician known best for his sleazy reputation was not with the intention of actually following his complaint through but simply to demonstrate that those who are in the seats of power, can humiliate anyone, disparage anyone.
The powerful message conveyed here is not only the fact that the allegation was made, as farcical as that may be but also that, a purported ‘inquiry’ was instituted. And the dropping of this ‘inquiry’ in the face of a public outcry or not, is no reason to cheer as some opposition politicians seem to think.
The point was simply, to show that it can be done. It was a warning, a red flag that this is what awaits any dissent. For it is hard to miss the extraordinary coincidence of the political match fixing charade coming hot on the heels of protests by these same cricketers against the proposed construction of a cricket stadium in Homagama, touted as the ‘biggest of its kind.’
Motivated exercises of political import
The fact that the cricketers were quite right, that their proposal to use available funds to train youngsters in the game of cricket rather than build stadiums was besides the point in this topsy-turvy reality. Cynics who point to fat cat commissions grabbed by ruling party politicians in these proposals to build white elephant absurdities are also quite right. And so we return to the riddle with which this column commences. The common thread in national cricketers being ‘investigated’ in this patently arbitrary if not preposterous manner and a plethora of Task Forces and Commissions of Inquiry established by the Rajapaksa Presidency with mandates usurping civil functions and judicial processes is clear. These are motivated exercises that challenge the Rule of Law.
Indeed, one such entity would have been bad enough. However, the combination of several entities with similarly concerning mandates sets a pattern that is ominous and unmistakable. We ignore this pattern at our peril. The problematic mandate of these Task Forces, for example, the all-military Task Force headed by the Defence Secretary which has been deputised to ‘create a secure country and a disciplined, virtuous, and lawful society’ and interalia, issue directions to public servants and public bodies, need not be emphasised afresh.
Who then do public servants obey, the Task Force or the law? What is the legitimacy of already existent bodies set up with public funds to look into these same issues? If there are concerns with their functioning, is not the remedy to redress those problems rather than have military overlordship? Did we not understand the lessons learnt in the covid-19 prevention exercise when the military was raised over the public health service and the balance was restored to some extent only after the health and medical professionals protested?
Acerbic missives by the Attorney General
And the situation therein is aggravated when mandates are operationalised in a manner that raises even more concerns. Late last month, the Attorney General wrote to the Commission of Inquiry on political victimisation to object against a serving state law officer being summoned by the Commission as a ‘respondent’ in a context where the Commissions of Inquiry Act (1948, as amended) under which this body has been warranted, does not provide for the naming of individuals as ‘respondents’ which is strictly reserved for judicial processes.
In an acerbic missive that referred to the styling of itself as a “Presidential Commission of Inquiry’ and the issuing of summons in that guise by that Commission being ‘misconceived in law.’the Attorney General drew the attention of the Commission to its own mandate. This was to ‘inquire into and obtain information in relation to the alleged political victimisation of Public Officers, Employees of State Corporations, Members of the Armed Forces and the Police Service who held posts during the period commencing from 8th January 2015 and ending on 16th November 2019.’ As such, the Commission was empowered to inquire into complaints of only those individuals specified therein rather than other third parties, he observed.
It was also explained that the Attorney General and his officers were presently prosecuting offences in courts of law concerning the same matters in regard to which state counsel had been summoned. As such, such summons amounted to an interference with the judicial process as well as the mandate of the state law office. At the core of this objection was the Attorney General’s repeated reminder that Commissions of this nature are fact finding bodies which must operate within that scope. Indeed, this point has been well settled in law.
More dangerous riddle than the ancient Greeks
The very nature of the proceeding before a Commission of Inquiry is predicated on the basis that it is fact-finding. Standards of proof used in findings of the Commission and in judicial proceedings differ. Hearsay evidence, which a Commission may take into account, will not be admissible in a court of law. Per se, its function is recommendatory. Its findings do not affect any party’s rights, or interests unless consequent action is taken by another agency such as the Attorney General for example, in filing indictment based on a Commission’s findings as empowered by the amendment of 2008 to the parent Act.
This legal principle is affirmed in established cursus curiae in our judicial history, (see the authoritative decision of the Supreme Court in Silva & Others v Sidique & Others (1978-79-80 (1) SLR 166). The fact that Commissions of Inquiry should not speak or adorn themselves with the trappings of courts of law has been categorically affirmed. And attempting to mix elements of one with the other will result in riddles far more dangerous for Sri Lanka’s Rule of Law than the Grecian Sphinx ever attempted to concoct.
That much is certain.