Sri Lanka: Sil Redi Verdict, Bond Scam and Executive Presidency
Sil Redi case showcases enormous power of the Executive Presidency and the need for it to be abolished
( September 18, 2017, Colombo, Sri Lanka Guardian) Two legal proceedings were much talked about during the past week-the Commission probing the Central Bank Bond transactions and the so called Sil Redi case in the High Court of Colombo.
Both these proceedings confirm that the administration of justice in this country is live and kicking and has the potential to mete out justice to all irrespective of the issues involved.
Apart from the evidence that has so far transpired before the Commission of Inquiry , what has been the subject of discussion among the public is the Commission’s order that Arjun Aloysious who is the central figure in the matter before the Commission is entitled to, if he so chooses (as he has now done ), not to give evidence and that he cannot be compelled to do so even though his evidence is relevant.
The Commission’s order has been based on the legal dictum embodied in the Sri Lankan Law that no person can be compelled to give evidence which is self incriminating. The Commissioners in their order have interpreted the law on the subject and set out their reasoning in arriving at such conclusion. The Commission has refused to play to the gallery by compelling Arjun Aloysious to give evidence but rather to use the words of the Commission in their order chose to be ‘coldly neutral’. The Additional Solicitor General has voiced his disagreement with the Commission’s order as he is entitled to do and has indicated that he would discuss the matter with the Attorney General.
While the Commision’s order has understandably puzzled members of the lay public who may not understand the complexities of the law. The fact that judges have to apply the law to the evidence before them and cannot take into consideration extraneous factors is something not easily understood by laymen.
Sections of the political establishment have been quick to jump to their own conclusions. The Leader of the National Freedom Front Wimal Weerawansa who functions as a de facto Joint Opposition spokesman criticized the Commission last week and screamed his disapproval of the Commission’s order. Of course considering the NFF leader’s conduct in humiliating the former Chief Justice Shirani Bandaranayake when she was arraigned before the Select Committee of Parliament his disparaging comments with regard to the Commission’s order are not in the least surprising.
The Commission in its order has also gone to great lengths to list out the matters on which Arjun Aloysious’ evidence would have been relevant and therefore helpful to the Commission in coming to a finding on the matters within its remit. In doing so the Commission has been fair to Arjun Aloysious enabling him to take an informed decision whether to give evidence before the Commission or not.
The other legal proceeding that has evoked a great deal of public interest is the judgement and fall out of from what is popularly known as the Sil Redi case. Once again the order of the High Court judge has attracted many observations and been subject to discussion in several forums.
In order to understand the High court Judge’s reasoning that led to his finding in this trial it is necessary to study the judgement in the case which is not yet readily available in the public domain. The reasons in a judgement delivered by a Court sets out the reasoning that guided the Court in arriving at its finding at the conclusion of the trial. As is often the case there may be different views with regard to the interpretation of the law or evidence but the reasons set out in the judgement provide the parties concerned an understanding of why the judge came to his conclusion in his judgement.
If it is perceived by one party that the judgement or the process leading up to a judgement is erroneous, the law provides that the aggrieved party can avail himself (as done in this case) of the appellate process whereby a higher Court will review the matter and mete out justice by quashing, confirming or varying the judgement after submissions by the parties concerned.
But what is more troubling is what has been happening after the judgement in the case was delivered. Former President Mahinda Rajapakse has publicly taken full responsibility for giving the order and stated that the two officials had only implemented a legitimate order. In a detailed statement the former President sets out the steps taken to use TRC funds and the justification for applying these funds to the Sil Redi project.
But what is more troubling is what has been happening after the judgement in the case was delivered. Former President Mahinda Rajapakse has publicly taken full responsibility for giving the order and stated that the two officials had only implemented a legitimate order. In a detailed statement the former President sets out the steps taken to use TRC funds and the justification for applying these funds to the Sil Redi project.
He has also used the statement to critique the process of reasoning of the High Court Judge in accepting or rejecting the testimony of witnesses. This is usually a matter which is done during arguments before the Appellate Court where the Counsel from the Attorney General’s Department usually defends the reasoning in the judgement. Unilateral comments on a Court’s reasoning in a public forum and more so in political forums can cause damage to the image of the judiciary in the eyes of the non discerning public. While the former President has been careful not to cast aspersions on the High Court yet statements made on other political platforms do not always show such restraint.
Given all the details in his statement the Defence lawyers may have given due consideration to calling the former President as a Defence witness in order to clarify matters. Whether a witness should be called or not is however the Defence lawyer’s prerogative and he would have undoubtedly decided not to do so after deeming it not to be in the interests of the Defence to summon the former President as a witness.
Another matter of concern is the politicizing of the judgement in the case by the Joint Opposition by mounting a campaign to collect monies to pay the fines and compensation from the public using some members of the Buddhist Clergy. There are several aspects of this Joint Opposition exercise that needs to be examined here. The fines and compensation will not become immediately payable now that an appeal has been filed. What will happen to the monies collected if the appeal is upheld. How desirable is it to enlist the services of the Buddhist or for that matter any clergy to pay the fines or compensation in respect of a conviction which is essentially of a criminal nature. Would this amount to sanitizing by the clergy of action that a Court has held to be criminal and what message would this give the public in general and the youth in particular.
When the Buddhist clergy silently go round collecting alms most people will contribute thinking it is for religious purposes. Thus would it not be better for a group of Joint Opposition politicians in the interest of transparency to go along with them explaining the purpose for which money is being collected.
But beyond all this two fundamental matters relating to Governance stand out demanding the attention of the public and the Government.
The first is the enormous power exercised by one individual (the Executive President ) in whom executive power is vested by the Constitution. According to former President Mahinda Rajapakse he had given verbal orders to spend 600 million rupees on the distribution of Sil Redi in addition to expenditure on 7 other projects which means the total expenditure incurred on a mere verbal order would have been much more than 600 million rupees. Assuming that the former President’s order is legal as claimed by him it is mind boggling that one individual (the Executive President ) can by a mere oral order disburse public funds of such magnitude without the requirement to put down in writing the rationale and thinking behind such an order which in turn should have been preceded by a detailed discussion of the merits and demerits of such a course of action.
It is also an indication of the power that envelopes the holder of such office who is untrammeled by the ‘whims and fancies of Parliament’ nor financial and administrative regulations. Such power cannot be good for the individual holding such office nor can it bode well for the political health of the country. In such a context it is surprising that there are those who still advocate the retention of the institution of the Executive Presidency in a new Constitutional arrangement.
The other issue that impinges on the issue of Governance is the question of financial discipline in the public sector. There is an urgent need to tighten up procedures to ensure both the protection of public funds as well as to safeguard public officials from undue pressure from politicians to misapply such funds in an irregular manner. Tightening up procurement procedures as well as the speedy activation of the National Audit Bill by the Government will greatly assist in achieving these goals.
( The writer can be reached at javidyusuf@gmail.com)
