Kishali Pinto – Jayawardene
Two years after Sri Lanka’s former Attorney General (AG) claimed on the eve of his retirement, that the savage attacks on churches and hotels by homegrown ‘jihadists’ in April 2019 discloses ‘a grand conspiracy,’ the country’s Minister of Justice has issued a flurry of directions to state agencies to ‘summon’ the former chief state law officer for questioning.
Action needed, not media dramas
If we are to be polite in our profound puzzlement, the why and the wherefore of this sudden Ministerial activation is a mystery of and by itself. He has (reportedly) remarked that, ‘a certain degree of scepticism’ surrounds the former AG’s claim But a fairer assessment would perhaps incline towards the view that, more than a degree of public scepticism attaches to the Minister’s own actions.
Why this ‘ministerial’ awakening to the former AG’s statement after many moons have passed?
If the Justice Minister was this concerned, surely that concern may have been evidenced far sooner and in better ways conducive to the Rule of Law rather than indulging in a media drama, replete with a depressing entourage of clowns and fakirs competing for ‘soundbites’?
The Government may feel pressurised to do ‘something’ when this doleful month of April comes around each year. Victims and the Catholic clergy walked on Colombo’s streets this week demanding justice. Are their demands best served by farcical exercises? Moreover, the impact of these ministerial spats reverberate beyond the media circus.
Subjecting the state law office to further controversy
We are informed that the Justice Minister had ‘instructed’ the current AG to question the former AG on that 2021 statement, as to what ‘information’ had disclosed what ‘conspiracy’ etc.
If that reportage is correct, we are entering on a bizarre new reality. Holders of the office of the Attorney General will be on notice to interrogate their predecessors on what they did or did not do during service.
Already subjected to unprecedented political pressure, this amounts to greater strains and tensions in that Office. While oversight should indeed take place of the actions of the state law office, that is best left to court, not to political dictates.
In the alternative, each officer will be looking over his or her shoulder, second guessing the exercise of prosecutorial discretion.
Years after they leave office, they will have to anticipate a summons from the Terrorist Investigation Department (as per the former AG) or allied state agencies, depending on the nature of the case in issue. Where does this stop?
Further, are we acknowledging that the Minister of Justice can ‘instruct’ the chief law officer of the land in regard to the direction that a particular investigation can take?
That claim about a ‘grand conspiracy’
Whatever happened, pray, to all that hoopla about the independence of the office, the need for a constitutional system of checks and balances, so on and so forth ad nauseam? Rash executive adventurism aside, it is a matter of curiority as to what exactly was said by the former AG that resulted in getting the Justice Minister so exceedingly riled up.
It had been said that, evidence gathering in regard to the 2019 attacks had disclosed ‘multiple suspects’ in regard to which investigations are ongoing. A ‘grand conspiracy’ was becoming evidenced in regard to which the ‘focus’ of state prosecutors is being directed.
Apart from one individual being identified as a ‘mastermind,’ he had observed that investigations disclosed a more complex reality.
In effect, ‘the conspirators’ of the attacks are ‘at different levels.’
The whole must be ‘carefully evaluated’ in order to come to conclusions in regard to the ‘leaders’ behind the attacks. In widely broadcast remarks, the outgoing AG added that, ‘the identities of those involved in the grand conspiracy must come by way of evidence.’
Earlier, he had also stated that feedback from the Inspector General of Police (IGP) on ‘clarifications’ sought in regard to ‘other suspects’ were pending.
Ministerial complaints and the police
Directions and instructions issued in that regard have yet not been responded to. Consequently, investigations were incomplete and he had been unable to forward indictments. Fast forward to 2023, the Justice Minister’s grouse appears to be that, these explanations by the former AG presents a case to answer as to he did not summon the police and order them to conduct further investigations.
This is, of course, as fine an example of beautifully circuitous reasoning as one could find. Ministerial frustration may have been understandable if the former AG had not referred to the fact of police non-action in regard to directions being issued by his office.
But the fact remains that, he did. In fact, that was cited as the very reason as to why he could not have moved ahead with the cases.
That makes the second ministerial complaint as to why he did not move the Magistrate’s Court to obtain the required orders, even more baffling. The state law officer should have moved the court to do what precisely? This is to confuse the prosecutorial function with the police investigation function, to put the matter bluntly.
A shattered Sri Lanka
Therefore, we return to our initial point of query, what occasioned such Ministerial ire in the first instance? Alas, that may remain as much a mystery as the ‘mastermind’ behind the agony of that fateful Easter Sunday morning in 2019 when smiling young men walked into churches and hotels with backpacks that exploded.
This precipitated Sri Lanka into a fraught political reality, shattering not only lives but also communities, families and exploding the fragile belief of post-war security. It framed the entry of a Presidential candidate (Gotabhaya Rajapaksa) on the triumphant platform of ‘defender of Sinhalese Buddhism,’ only to plunge the nation into its worst financial, social, regulatory and humanitarian crisis since independence.
But ‘grand conspiracies’ apart, we must also ask whether the 2019 attacks could have been prevented if the Anti-Terrorism Bill (2023) that the Justice Minister has energetically taken up-on himself as his (bad) brief to defend or for that matter, the Counter-Terrorism Bill (2018), had been law at the time? The answer to that question is a resounding ‘no.’
The failure to prevent the 2019 attacks was a failure of the political machinery, the intelligence and the defence apparatus.
Setting the record straight
The recent Supreme Court decision reprimanding former President Maithripala Sirisena and his defence cum intelligence chiefs, makes this clear. It was emphatically not a failure of the law. And to correct further misconceptions airily floated by politicians recently, the 2018 Counter-Terrorism Bill did not receive global acclaim.
On the contary, it was subjected to harsh criticism on the same grounds as the proposed Anti-Terrorism Bill. Its offences were too broadly defined and inter alia, it conferred unprecedented powers on the police with potential of misuse. The Bill was withdrawn by the Government precisely due to those reasons.
What is this strange state of amnesia that afflicts the political establishment to forget that fact?
And to the same point, the 2023 Bill is certainly not the same as the 2018 Bill. It is far worse, particularly in the inexplicable grafting of the much abused Section 3 (1) of Sri Lanka’s International Covenant on Civil and Political Rights (ICCPR) Act as another component of the ‘offence of terrorism.’
As observed previously in these column spaces, this clause was absent in the 2018 Counter-Terrorism Bill. Despite public concern, the Government has not committed to deleting that clause. And the answer to the flood of critiques pouring in on the 2023 Bill is not to parrot that anyone can complain to the Supreme Court.
The ethos and nature of this Bill is so grotesque that limited constitutional interventions will only reduce some of its more absurd clauses.
The Bill has to be discarded. There is no other option.