State investigating outfits
Should President be kept informed of those summoned?
By Shyamon Jayasinghe-October 23, 2016, 8:14 pm
Responding to the widespread criticism of his famous speech at Sathviru Sanhinda’ programme held at the Sri Lanka Foundation, President Sirisena clarified that what he insists is that when former Defence personnel- all and sundry nationally defined as ‘rana viruvo’ - are summoned for questioning by the Bribery Commissioner and other Independent Commissions, he should be prior informed of such action. This raised many an eyebrow among knowledgeable persons.
I can understand such a privilege being applied to currently serving Commanders of the Forces and the IGP. By definition, such officials are crucial to the maintenance of national security and the rule of law, and it would be both problematic and enigmatic if they are summoned without the Commander-In-Chief knowing in advance. But for the retired, who are summoned to explain some serious allegations relating to their time in office? What’s wrong with that?
If the charges pertain to robbing state funds, to money laundering, to serious sexual abuse or to murder itself - all done while they were in service, why not summon them without any such intimation? Right now, there are serious charges that reek the air about retired defence and army personnel over a host of alleged crimes, ranging from million-dollar purchases of aircraft and murder, to the stealing of turtles. There are charges that retired army personnel had been employed to carry out murder. It is clear that there was something rotten about the defence establishment of the former regime. The recent suicide of a retired soldier claiming he killed the Sunday Leader Editor and that, therefore, he is hanging himself in remorse, sounds more phoney than truth. The Thajudeen murder is still high profile and crying for justice. The physical assault of journalist Upali Tennekoon and the disappearance of Prageeth Ekneligoda are all, along with Thajudeen, attributed to retired army soldiers.There are allegations that slush funds of the intelligence arm of the government had been used to pay such retired personnel, masquerading under spurious names. Were the top rankers in the Forces aware of these? That is a moot point?
Whether these charges are proven or not is not the issue. That they are very serious allegations do constitute the issue. If confidence in government is to be re-established it is crucial that independent commissions be allowed to investigate them all without interference from the executive or the legislature. Yahapalanaya cannot be established without building public confidence in government. Besides, there is a futuristic aspect about yahapalanaya, in that the envisioned vibrant working of independent bodies, whose independence is guaranteed by the constitution, would have a detrimental effect on potential crimes of this nature by anybody and any government set-up of the future. Thus, it is good for now, and good for the future health of government - this government or any other. It is a question of setting the system right.
What are the options available to the President if he is informed prior about the summoning of such service personnel. Can he give an order to stop it? No; for that would not only be illegal but would undermine the independence of the independent commissions. On the other hand, if the President fails to stop action, then he will be made a victim of the anger of the affected serviceman. What all this means is that the President gets unwittingly embroiled in the issue. In Sinhala we call it "illang kanawa."
At the back of this whole crisis, symptomised by President Maitripala’s now famous speech, is an unwillingness of our politicians in general to accept the modernity, validity and necessity of having operating bodies independent of their control. I am not saying this specifically targeting the President, who has done better in this respect than his predecessor. The deep-rooted value, amplified no doubt during ten years of rule by the former regime, is that politicians who run government own the country as their personal property. One witnessed this political-cultural trait in the notorious act of brutal bullying of the former Chief Justice, Shirani Bandaranayake. Even before former President Mahinda Rajapaksa, we had President JR Jayewardene who gloated in public that he had all the powers to do anything, except to make a gender change. The privatisation of government decision -making had been carried to the extreme by resident Mahinda Rajapaksa. The danger was that this right to government as private property trickled down to the entire political edifice. We are stuck in it still -although some measurable progress has been made.
I believe it is vital for yahapalanaya to rectify this fundamental canker in our body politic. The President, Prime Minister and all Ministers, must set the example and the model. A constitution should create the required legal framework. The Nineteenth Amendment was indeed a breakthrough but it must be followed up by a totally new constitution and the broad education of the people.
There is another important issue here: There is a dilemma involved in this transformation towards independent para judicial bodies. I think President Sirisena’s provocation had been a reaction to the dilemma. An Independent body should not be perceived as being a law unto itself. If this does happen, and if personnel driving such bodies try to foster their egos, then a new form of injustice will be perpetuated.
A good illustration of an apparent bad practice was the allegation made by President Sirisena that A. H. M Fowzie of the SLFP had been interrogated before rookie cops. If such an occurrence did take place, the appearance of it did not look good. This allegedly diminished the stature of the venerable political leader. Appearances of fair play on the part of independent commissions are crucial. In the end, wide social acceptance is a must for the functioning of such bodies. Therefore, such Independent Commissions must be inculcated in right behaviour patterns and a code of conduct must be presented to them.
It would be pertinent to conclude with a quote with reference to the judiciary from Australia’s Chief Justice Gerard Brennan, AC, KBE: "The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law - the rule which binds the governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law. That aspiration depends for its fulfilment on the competent and impartial application of the law by judges." This statement, meant to relate narrowly to the Judiciary is applicable in spirit to all independent commissions.
