Sunday, August 27, 2017
The agitated pleas of the ruling United National Party (UNP) parliamentarians that they became ‘fully aware’ of former Justice Minister Wijayadasa Rajapakshe allegedly stalling corruption cases against the Rajapaksa clan only now, must be taken with more than a pinch of that proverbial salt.
Overstepping the line a long time ago
That explanation, as rich as it is, is a tad too disingenuous to swallow in one gulp. Let me be clear. If the basis for the ejection of the Minister was the violation of the principle of collective Cabinet responsibility, that is another matter altogether. But the Government should not try to ride high on the removal and hold out that the one obstacle to a successful anti-corruption drive has now been disposed of. That will only be accepted by the exceedingly naïve.
For if one fact was clear in this messy saga, it was that the former Justice Minister was overstepping the line a long time ago, with little consequences from the party hierarchy. There are many examples. Six months into the new Government being installed for instance, he questioned if it would be correct to allow former Secretary to the Ministry of Defence Gotabhaya Rajapaksa to be arrested under anti-terror legislation as this was a ‘law implemented against Prabhakaran.’ His claim was that, if so, this would be to ‘make a Prabhakaran’ out of the former Defence Secretary (Hiru talkshow programme, Salakuna, December 15, 2015).
The personal partiality and categorical bias reflected in that exchange was unbelievable. It is not the business of a Justice Minister to declare as to what individuals a particular law should apply to. That is the function of the courts. And in any event, the sham ‘patriotic’ fervor in that question is contradicted in a practical sense. The Rajapaksas themselves had little compunction in using anti-terror laws against the celebrated ‘war-winning’ Army Commander Sarath Fonseka. Several of his body guards were arrested under emergency law.
Is the dismissal too little, too late?
So there is no impunity protecting the former Secretary of Defence and the former President’s brother from arrest under the law which applies to whatever offence that an individual is accused of. The law is the standard as applied/investigated/prosecuted by the very institutions that the former Minister pleads with considerable fervor that he could not have ‘interfered with.’ He cannot hide behind that cover and privilege some over others. The same reasoning was evidenced in his defence of the private maritime security firm Avant Garde, accused of maintaining a floating armoury of purportedly illegal weapons in the Galle harbour, when investigations were ongoing.
So this behaviour on his part was certainly not of recent duration. Protests to the contrary do not ring very convincingly in our ears. For the Government, the question now is if this dismissal is too little, too late. Certainly there has been a huge dent in its good governance credibility shield. The former Justice Minister has protested that his removal was to pressurize the Department of the Attorney General in regard to stepping back from hard action in ongoing hearings before the Presidential Commission of Inquiry investigating the infamous Central Bank ‘bond scam’ under this Government. He has claimed that the Attorney General was summoned and castigated by the Government. In turn, the Attorney General has stoutly refuted this allegation and said that it was he himself who requested a meeting on behalf of the Department with the Prime Minister. The public will wait to make a judgment on this matter.
In particular, let us see if a 2008 amendment to the COI Act (1948) which conferred new powers upon the Attorney General to “institute criminal proceedings in a court of law in respect of any offence based on material collected in the course of an investigation or inquiry, as the case may be, by a Commission of Inquiry” will be made use of in this regard. The fact of this amendment was first pointed to in these column spaces (‘The classic dilemma of the unrepentant ministers’, Focus on Rights, August 6, 2017).
Addressing core failures of the legal system
And to be perfectly clear, the absence of political will is not limited to stalled corruption cases. Core problems bedeviling the criminal justice system are still not even sought to be redressed. These include chronic laws’ delays in emblematic cases of killings, extra-judicial executions and enforced disappearances along with pending cases on thievery of state funds.
The Ministry of Justice, other countless outfits working on the Rule of Law from 2015 hand in glove with the Government as it were, including the Bar Association of Sri Lanka, should have advocated for and pushed through policy changes and monitored ongoing cases. The overhaul should have been comprehensive. If this had happened in the North and East, it would have taken the sting away from the (justifiable) fury that the Government has done nothing but talk of an elusive transitional justice. Most importantly it would have alleviated the pain of family members of victims. That did not happen. That is shameful. Similarly, this effort would have deprived the Rajapaksas of their exceedingly false cry of victimhood in the South.
Human resource shortages at the Attorney General’s Department and the Criminal investigations Department are quoted as cause for why the law splutters. Rectifying that problem is the responsibility of the Justice Minister. But the former incumbent seemed to only luxuriate in inflammatory declarations with little else to show. Certainly when a Minister fails the responsibilities of his portfolio, he cannot hide behind the mantra of saying that he ‘did not want to interfere with independent institutions.’
Making up ‘our own minds’
So we return to the initial question underlying the introductory paragraphs of this column. Will the departure of this Minister make a difference to the trajectory of Sri Lanka’s anti-corruption efforts? As pointed out previously, the octopus-like tentacles of corruption reach into the highest places of government, then and now.
The UNP’s silence for more than one and a half years while this beggar’s wound festered and its hysterical effort to prevent the truth regarding the Central Bank bond scandal is telling. It will take a considerable effort to rid itself of allegations of bad faith that cling so persistently to it, much like an unpleasant smell.
Undoubtedly, the people will ‘make up their own minds about the Government’ as the former Justice Minister exhorted with passion following his dismissal this week. Yet, it is a stretch to think that sympathy for him will feature prominently in that equation. That much is quite evident.
