By Vimukthi Yapa –
For many years before the Attorney-General assumed his high office, his colleagues had been only too familiar with his propensity for horsing around and playing politics with the law. Alas, the warning signs went unheeded by the President who anointed him Attorney-General.
Thus, the “AG” romped and galloped around town with impunity for three years before dragging the venerable Attorney-General’s Department into scandal after scandal of unprecedented turpitude. By the time Victor Ivan exposed his misdeeds, it was too late. Attorney-General Sarath Nanda Silva had already been elevated to the exalted post of Chief Justice.
Mercifully, his immediate successors as Attorney-General, Kandapper Kamalasabayson and C.R. “Bulla” De Silva, reinfused a sense of destiny, purpose and moral integrity into an Attorney-General’s Department that had been shaken and demoralized by Silva’s personal and political antics.
Twenty years hence, a new Attorney-General today canters along the hallowed halls of Hulftsdorp. By every indication, Dappula de Livera may have already wreaked more havoc in three months than Sarath N. Silva managed in three years.
De Livera “earned high praise” says his official biography, for “his role as a fiercely independent prosecutor” for the 2017 Bond Commission. “High praise” indeed. De Livera distinguished himself as the only officer in the Department’s 135-year history to be admonished by a Commission of Inquiry in its report and its proceedings. His theatrical examination of Ravi Karunanayake “was a waste of time” and “did not succeed in getting any new material” said the commission. “Your behaviour is not fitting to a senior counsel,” Justice Prasanna Jayawardena once snapped at him, in full view of the press.
After De Livera tried to shout down the commissioners with an unhinged diatribe, Justice Jayawardena placated him. “I’m sure your words will be appropriately reported in the media, which will give you satisfaction.” Satisfied he was, but now a full year-and-a-half after the publication of the Bond Report, it turns out that his haphazard and childish examination of Karunanayake failed to elicit the elements for the offence of perjury.
Since becoming Attorney-General, De Livera’s media fetish has reached a climax. The nation’s prosecutorial and legal advisory body is today reduced to serving as his personal propaganda machine. His defenders may argue that “the job” is getting done, and it is only just that credit be given where credit is due. But is “the job” getting done?
De Livera, our first AG in living memory who has never prosecuted a major case, may be surprised to learn that headlines and press releases do not convictions make. Sensitive advice letters from the Attorney-General to the police, once shrouded in secrecy, are now routinely doled out to the media in advance, tipping off suspects facing arrest to flee the country, rush to hospital, file litigation or consult with their attorneys and prepare their alibis.
Indictments and charge sheets in marquee cases including the Rathupaswala slaughter, the Welikada prison massacre, and the Avant Garde case reach the press before the courts, conspicuously absent any mention of the American citizen, former defence secretary and President-in-waiting who investigators have proven masterminded these crimes.
De Livera is in a similarly mighty hurry to wrap up every case involving a white van or a murdered journalist. The writing is on the wall. Half-baked cases will follow against the men who followed orders, and he who gave then will remain above the law. When it comes to the defence secretary who the CID says presided over a death squad, celebrated the murder of Lasantha Wickrematunge on BBC News, routinely threatened journalists with death, and had a string of LTTE suicide bombs go off on his watch, De Livera finds no evidence of a crime.
Not so for Hemasiri Fernando, whose negligence De Livera told the media was a “grave crime against humanity” amounting to murder. On July 9, Magistrate Lanka Jayaratne, in a meticulously crafted order, ripped to shreds De Livera’s infantile effort to charge Fernando with murder over the Easter attacks.
In a foregone era, an Attorney-General would have bowed to judicial independence, perused the order, weighed the legal merits and contemplated an appeal. That was before the bull ran the china shop. Before anyone had even read the order, a panicked press release screeched that it was illegal and De Livera would contest it. When his challenge was finally filed, it was also accompanied by a press release slamming the judge’s order as illegal and biased.
The AG’s own trigger-happy press releases reveal that the police were wary of charging Fernando and IGP Jayasundera with murder. They did so only under extreme public duress from De Livera. While unusually public, this case was nothing special. Prosecutors are routinely jockeyed by De Livera, in language unfit to print, to close investigations and rush half-baked indictments in any case that will grab a headline.
Sometimes a press release will not do. When it comes to the Bond Scam, is seems paramount to De Livera that the country believe that we have him, and him alone to thank for bringing Arjuna Mahendran, Arjun Aloysius and the other scammers to book. So determined is he to keep the spotlight on himself that for the first time in history, the state press dedicated a full page to praising the Attorney General, chastising his predecessors and planting all credit at his doorstep. Such articles do not write themselves. When his officers recoiled at this vanity, another article appeared giving his 15 prosecutors a morsel of credit for the trial to come, while of course stressing that De Livera will “personally” lead and oversee them.
His leadership priorities were on full view last Friday when he wriggled out of testifying in Parliament about the AG’s Department failing to prosecute the suicide bomber Zahran, notwithstanding two years of begging from the police. Rather than stand up like a leader and take responsibility as the then head of the Criminal Division, he threw an innocent state counsel under the bus with glee and fled the premises on a convoluted technicality. In De Livera’s book, a general may lead from the front, but an Attorney General leads by hiding behind his officers as human shields.
Indeed, by De Livera’s standard, the testimony before the Parliamentary Select Committee by his officials last Friday exposed more evidence of gross omissions, negligence and impropriety on the part of De Livera’s leadership of the criminal division of the Attorney General’s Department than he has presented against Hemasiri Fernando. By his own standard, De Livera should either drop his charade or charge himself with murder.
What the public sees is just the tip of the iceberg. Prosecutors now routinely butt heads with their ill-tempered boss and find themselves scribbling pages full of minutes in file upon file to clear their names of responsibility for his indefensible positions. Those more fortunate are seeking greener pastures like judicial vacancies and foreign postings merely to ride out the De Livera dog and pony show.
There are hidden limits. One too many a prosecutor may abandon ship. One too many a judge might rule that the AG is a loose cannon and tear down a key prosecution like a house of cards. Or perhaps one too many a police officer will be forced to withhold critical investigative secrets from De Livera for fear of another devastating press leak. Straws are piling up on the camel’s back. At this clip, our entire justice system could collapse overnight and without warning. To avert catastrophe, De Livera must be reined in.
In October 2016, the Bribery Commission was led by a Director General of such impeccable integrity that despite her independence earning unprecedented public acclaim, it took a single unsubstantiated allegation of misconduct for her to step down with dignity. Today, that leader, Dilrukshi Dias Wickremesinghe, is Solicitor General, and De Livera’s unwitting deputy.
With leaders of her calibre standing by and ready to serve, the President, government, Constitutional Council and Parliament are fast running out of excuses to turn a blind eye to a wild stallion riding roughshod over the standing of one of Sri Lanka’s most sacred institutions.