10 December, 2019

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Article 35(1) – A License To Kill: An Ode To All The President’s Dead Souls  

By Ruwan Laknath Jayakody

Ruwan Jayakody

As is the case with the pigs of Manor Farm, in George Orwell’s allegory, where “all animals are equal, but some animals are more equal than others”, so does the very same Second Republican Constitution of 1978 as Amended, which enshrines the right to equality and equal protection of the law, guarantee immunity from suit for the so called first citizen of the land – the Executive President. 

Admittedly, while there may be bona fide practical reasons (such as creating a conducive environment for the President to perform the functions of the office without having to face the animus of litigants constantly agitating the Courts) and also mala fide ones such as carte blanche akin to the license to kill afforded to the fictional spy James Bond, behind the framing of Article 35(1) of the Constitution which holds that – not only can no civil or criminal proceedings be instituted against a sitting President but that such actions already instituted against the President prior to him/her becoming the President, in connection with any act of commission or omission by the President in his/her official or private capacity, cannot be continued – its monumental impact on the justice system (including both civil and criminal justice) and specifically the process of meting out justice to aggrieved parties and victims remains problematic, especially so when the matters concern alleged serious crimes such as murder, enforced disappearance, torture, extrajudicial killing and crimes against humanity.

Take for an example, the case of the wife of missing person Prageeth Ekneligoda (victim of an enforced disappearance), Sandhya Ekneligoda, who on 5 November 2019 wrote to the at the time yet to be President, Sri Lanka Podujana Peramuna Presidential candidate, Nandasena Gotabaya Rajapaksa subsequent to an alleged statement made by the latter on 9 October in Anuradhapura, to the effect that the moment he becomes President, he would free and release imprisoned soldiers. She noted that such a statement violated the Constitutional guarantee of the right to equality before law and the equal protection of the law, and would also serve as an official sanction for justifying any crime committed by the security forces, which in turn would negatively impact honest and skilled law enforcement officers involved in meting out justice. She further queried whether he would pardon all convicted military officers (including for the crimes of murder, armed robbery and rape), whether he would halt the legal and judicial proceedings underway into her husband’s disappearance and other emblematic cases with military involvement, and whether he would pardon, former Parliamentarian Duminda Silva (convicted for the killing of former MP Bharatha Lakshman Premachandra) and former Tangalle Pradeshiya Sabha Chairman Sampath Chandrapushpa Vidanapathirana (convicted for the murder of British national Khuram Shaikh and the gang rape of his Russian partner). She observed that any such pardon if granted would be contrary to the independence of the Judiciary, the rule of law, and respect for the Constitution and the rights of victims. Finally, she emphasized that the safety and security of herself, her two children and other victims would be jeopardized if convicts and accused parties in related cases are pardoned. 

The various aforementioned allegations against Rajapaksa stem from his previous capacity as the Secretary to the Ministry of Defence and Urban Development.

Prior to Rajapaksa’s ascendency to the elected office of the President, there were several judicial proceedings ongoing in the form of cases filed against him by the State prosecutor (the Attorney General’s Department) regarding alleged acts of commission and omission committed during his tenure as the former Secretary to the Ministry of Defence and Urban Development. These involved the criminal misappropriation of public funds in the construction of the D.A. Rajapaksa Memorial and Museum in Weeraketiya and the Avant Garde floating armoury case (In the latter case, he was acquitted by an order of the Court of Appeal on technical grounds which did not however prevent a fresh case from being filed in this regard). There are several other cases in which he has been implicated in, yet not charged. This is in addition to the allegations of humanitarian and human rights law violations levelled against him in connection with the war against the Liberation Tigers of Tamil Eelam, and alleged white van related abductions and enforced disappearances, and attacks on and the killing of journalists and activists. Ahimsa Wickrematunge, the daughter of slain Sunday Leader Founder Editor Lasantha Wickrematunge is engaged in valiant efforts to have Rajapaksa tried for torture, extrajudicial killing and crimes against humanity, in the United States.      

In a cruel twist of fate, a pillar of democracy – the Judiciary, in this case the Permanent High Court-At-Bar (Trial-At-Bar) of the Western Province, has had to, as per the law and a request made to the Court by the State prosecutor – the AG’s Department, release President Rajapaksa from the indictments filed against him in relation to the alleged misappropriation of public funds to the tune of Rs 33.9 million in the construction of the D.A. Rajapaksa Memorial and Museum in Weeraketiya. Officially it is called abatement and in colloquial legal parlance it is termed as a lay-by. As to the fate of ongoing and future judicial proceedings against Gota, this is a sign of things to come. The same courtesy is expected to be extended in any implications of a criminal nature against Rajapaksa, for example, concerning his involvement in the Welikada Prison massacre of 2012. 

The Welikada Prison incident on 9 and 10 November 2012, a melee alternately described as a riot by the State and the Government, and a massacre by eyewitnesses, claimed the lives of 27 prisoners. This author along with others in a series of investigative articles on the State sponsored Welikada Prison massacre of November 2012 (1 – https://www.colombotelegraph.com/index.php/i-was-an-eyewitness-to-kalu-thusharas-murder-at-2012-welikada-prison-bloodbath-sudesh-nandimal-silva/, 2 – https://www.colombotelegraph.com/index.php/former-welikada-prison-official-testifies-about-the-2012-massacre/, 3 – https://www.colombotelegraph.com/index.php/2012-welikada-prison-massacre/, 4 – https://www.colombotelegraph.com/index.php/welikada-prison-massacre-riot-cover-up-under-climate-of-fear/ and 5 – https://www.colombotelegraph.com/index.php/charge-gota-says-nambuwasam-coi-on-welikada-massacre/), cited multiple official/unofficial sources (including at the time Class I Jailor P.K.W. Kudabandara who recently testified in open Court about the infamous “Gota ge list eka (This is Gota’s list) in reference to the kill list used in the said point blank execution style massacre – the evidence was however of a hearsay nature, thus being problematic in terms of admissibility in Court) attesting to Rajapaksa’s involvement,  and revealed one of the recommendations of The Committee of Inquiry into the Prison Incident Welikada – 2012 (C.I.P.I)/Nambuwasam Committee (named after the Committee’s Chairman, retired High Court Judge Wimal Nambuwasam) which was to charge Rajapaksa and five others, under Section 162 of the Penal Code, which deals with public officers who by way of their conduct disobey the directions of the law with the intent of or knowingly causes injury to a person or persons or the Government. Conviction for the said charge carries a term of simple imprisonment for a maximum of one year and/or a fine. Also, the C.I.P.I noted that the aforementioned public servants owed a duty of care to the victims and that they were ideally positioned to foresee the catastrophic consequences of their acts of commission and omission. Of the six recommended to be thus charged, only two along with another not in the aforementioned six have been indicted thus far {former Jailor and Officer-In-Charge of the Prisons Intelligence Unit, Indika Sampath, the latter who has vacated post without prior notice to superiors and is presently overseas evading Court, and former Superintendent of the Magazine Prison and current Commissioner of Prisons (Rehabilitation) (covering up duties) on compulsory leave, Emil Ranjan Lamahewage, and non-listed Inspector of Police attached to the Police Narcotics Bureau, Neomal Rangajeewa}. What resolution for the aggrieved parties – the victims, smothered by the silence of time? Whither justice?

As Attorney-at-Law and Columnist Kishali Pinto Jayawardene in a recent newspaper column titled ‘The November polls revenge of Sri Lanka’s enraged electorate’, astutely observed: “Is the election to Presidential office a magic cloak rendering invisible, criminal allegations regarding which a court of law is looking into?”

Impunity and atonement, it seems, are two sides of the same coin; the coin in this case being that most sacred parchment of the social contract – the Constitution. Where then does one go to in order to purge the double whammy, that of one’s enemies and one’s sins, all in one fell swoop – but to Article 35(1) – which is both a license to kill to spill innocent blood and a confessional to spill one’s remorseless bile to. As the American poet Edgar Bowers notes in his “To the Contemporary Muse” – “Honesty, little slut, must you insist, On hearing every dirty word I know, And all my worst affairs?”

Article 35(1) then has become the charnel house of the law, a hungry grave, from where only the dead will, as British Nobel Literature Laureate Harold Pinter observed, miss the living.

What shall we who count our days and bow

Our heads with a commemorial woe

In the ribboned coats of grim felicity,

What shall we say of the bones, unclean,

Whose verdurous anonymity will grow?

The ragged arms, the ragged heads and eyes

Lost in these acres of the insane green?” – Ode to the Confederate Dead, Allen Tate, American poet

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Latest comments

  • 12
    2

    Only the President knows the numerous persons whose deaths he is responsible for both directly and indirectly and therefore the term ,” All the Presidents dead souls” in the title is very apt. Bensen

    • 3
      0

      Mr. Jayakody : Gota was and still may be a US citizen. For the past 15 years. So why didn’t the US try him and lock him up for all these crimes all these years? !
      CID’s Shani who covered up the foreign black hands culprits behind the Easter Carnage staged by US-Saudi-Israel owned ISIS has now fled to Suiss.. Any intell on this?!!
      Sri Lankans are tired of this kind of narrative from US-EU bots and the US and EU fake Human Rights and reconciliation shows to advance the US military plan to wage war on China, in Lanka and loot and land and Ocean grab the resources of the island.
      US EU should first deal with their minority and Muslim issues..

    • 2
      1

      Our Presidents can do NO WRONG, before, during or after their reign.
      Constitution serves no purpose.

  • 3
    13

    I thought you got it all wrong.. Mate.

    President Nandasena ‘s statement is about the Security Personnel . Intelligence Officers including Police personnel who were rounded up by Dr Ranil appointed CID Boss and his Assistants, on the orders of some ministers in the Yahahpalana Government.

    And incarcerated hoping that they will” Rat” on Nandesena.

    Those poor souls who joined the Forces when Mr Pirahapran was killing them in hundreds if not thousands wouldn’t have gone to fight the Tamil War Lord , if they were wimpy kids..

    They refused point blank to agree to dob in an innocent person.
    They not only need immediate release but they should be well compensated too..

  • 4
    7

    i think it is better to let the president concentrate on his job.The country is more important.Anyway even if these things go to courts while he is the president,do you think the judges are going to be fair.We missed the bus due to the rascals sira and ranil ,the backboneless shits.When the LG election results came in i made comments several timesthat ranil should resign and the UNP has to be revamped with a new leadership.The faceless people running the UNP from the background did not heed it for their own selfish reasons.Now also i say the same thing in order to avoid a drubbing at the general elections.The day that the LG election results rolled in everyone knew the rajapakshes are back.So there was ample time of nearly 2 years to do something.Now no point crying about this article and that article.We have to give the support to gota because the country is more important.

    • 1
      0

      shankar@
      :
      what can be seen fair under rogue state ?
      .
      The chances were less to bring the people back to civilized mode. Anyways, we missed the bus.
      :
      Now thanks to stupid majority people, we too have to face it.
      This nation would take another few decades to become what is ETHIOPIA today ( dont mix it up, today s Ethiopia with once upon a time the poorest nation ethiopia). Now already for the last 3 years, Addisebeba has started tram services in that city while our people are dreaming of the kind of transport systems to be seen in congested colombo.

  • 11
    0

    Nothing is going to change or happen in this connection even if you write one hundred article like this.they are supposed to have obtained this big margin of victory by canvasing through 7000 BUDIST SHRINES.WHEN 7000 CHIEFS OF BUDIST SHRINES TOGETHER WITH THREE MAHANAYAKAS ARE BEHAVING LIKE POLITICAL LEADERS AND ARE DEAF AND BLIND WHAT IS THE POINT OF THESE ARTICLES.IT IS ONLY SERVING PEOPLE LIKE US TO WHILE AWAY THE TIME AND POSTING COMMENTS-SAADU SAADU

  • 1
    12

    This article itself justify the existence of Article 35(1).
    Otherwise crooked operators like so called Civil Society will be all out to get democratically elected president.

  • 1
    8

    Mr Jayakody
    Now how do you defend those who actively supported (such as Ranil Wickramasinghel) to establish such abominable legislation (in your own opinion)? Theoretically what is the difference between Gotabhaya’s platform statements and Ranil Wickramasinghe’s support in the Parliament in regard to the subject clause in the Constitution? In other words of all people can Ranil Wickramasinghe criticise Gotabhaya Rajapaksa in saying so?

    Soma

  • 1
    4

    This writer is a person who clearly makes sure that he will NOT be understood by the reader. He quotes George Orwell, and write in a manner similar to the incomprehensible letters that a Kafka may have received.
    The most important characteristic of good English is that it is written in simple lucid sentences. NO sentence should be longer than the attention span of the antricpated readership. As McLuhan said, the medium is the message. Here the author’s message is lost in the unending sentences that the author writes.
    Here is one of his leading sentences.
    Admittedly, while there may be bona fide practical reasons (such as creating a conducive environment for the President to perform the functions of the office without having to face the animus of litigants constantly agitating the Courts) and also mala fide ones such as carte blanche akin to the license to kill afforded to the fictional spy James Bond, behind the framing of Article 35(1) of the Constitution which holds that – not only can no civil or criminal proceedings be instituted against a sitting President but that such actions already instituted against the President prior to him/her becoming the President, in connection with any act of commission or omission by the President in his/her official or private capacity, cannot be continued – its monumental impact on the justice system (including both civil and criminal justice) and specifically the process of meting out justice to aggrieved parties and victims remains problematic, especially so when the matters concern alleged serious crimes such as murder, enforced disappearance, torture, extrajudicial killing and crimes against humanity.
    Now I will not take the trouble to point out the grammatical errors in this authors writings. That is unnecessary, because no one, not even the author, is likely to have read what he has written.

  • 12
    1

    Ruwan Laknath Jayakody writes bravely and I salute him. He has opened those doors that were shut after the 17th.

  • 11
    1

    It has only been a few days, and adversaries of the Rajapaksas are fleeing the country, afraid for their lives.
    The Rajapaksas have brazenly got all criminal charges against them dropped, and MR’s oldest son is now allowed to gallivant around the world once more, because that travel ban has been mysteriously lifted. What corruption?
    Journalists and the news media will once again live in fear.
    Buckle your seat belts Sri Lanka, it is going to be a rough ride.

    • 3
      0

      Sri Lanka is not a Democracy; i.e. “A Government By the People For the People”!
      It is a Government By the Rajapakses For the Rajapakses!

    • 1
      0

      Tara – When synthetic “lowyer” Namal Rajafucksha rides again all his “flying angels” will have to unbuckle their chastity belts!

  • 5
    0

    This is what I say, selective application of the issues depending on the person. As long as the immunity was availed even by late President R. Premadasa article 35(1) was of no concern. Now we talk of 35(1). One of the plus sides of the “Yahapalana” government was the introduction of the 19th amendment diluting the blanket immunity of 35(1) enabling to file fundamental rights cases against the President. Even they did not see fit the complete removal of 35(1), unlike certain fellows who championed a total reform of the constitution removing such immunity. You can make mincemeat out of a person even without making him to disappear as in the past. That is where one has to watch. NEW TECHNIQUES. If the writers, while respecting their rights to voice their opinions , do have the time and energy to write of the past, well and fine but it may pale into insignificance in the light of new methods of muzzling.

  • 5
    0

    ‘ not only can no civil or criminal proceedings be instituted against a sitting President but that such actions already instituted against the President prior to him/her becoming the President, in connection with any act of commission or omission by the President in his/her official or private capacity, cannot be continued ‘

    It does not say that such action cannot be continued after holding office.

  • 1
    7

    If a pharmaceutical company produce a medicine for Rajapakse-phobia, there will be high demand from ‘Koti Diaspora’, LTTE carders, Wellala Demalu, some Civil Society and NGO suckers.

    • 1
      0

      I think it is youwho the kind of sinhalaya are worst than tamil people.
      :
      I am ashamed to see as to why you guys born this much racists. You are a man in early 80ties, but your hatred are even more powerful than nagasaki bomb.
      .
      Mahindananada Paraballa, learn to be a human with few more years to go with you live.
      We the sinhalaaya should behave exemplary rather than becoming that racial as you guys are.

  • 1
    7

    For those who are making a desperate attempt to link Gotabhaya Rajapakse to the murder of Lasantha Wickramatunga and disappearance of Ekneligoda, I would like to suggest that they watch ‘Salakuna’ program in Hiru TV on 25 November 2019 where Mr. Ajith Prasanna representing ‘Mawubima Wenuwen Ranaviruwo Sanvidhanaya’ told the whole truth nothing but the truth. According to him, murder of Lasantha is the work of ‘Wel Vidane’. He is confirming what Ranil told in the Parliament. Disappearance of Ekneligoda is the work of ‘Yakada Miniha’ in Ranil’s Government. Ekneligoda had disappeared three days after he wrote an article on ‘Yakada Miniha’s’ romantic life.

  • 3
    0

    The U.S. Constitution explains how a president can be removed from office for “high crimes and misdemeanors” by Congress using the impeachment process. But the Constitution is silent on whether a president can face criminal prosecution in court, and the U.S. Supreme Court has not directly addressed the question.

    The U.S. Justice Department has a decades-old policy that a sitting president cannot be indicted, indicating that criminal charges against Trump would be unlikely, according to legal experts.

  • 7
    0

    I wonder how many of that 52.25%, in full knowledge of all this, still cast their vote for Gotabaya.
    Will the colour of the infamous vans have to be changed after the Swiss Embassy was “affected” by the first (?) alleged (?) abduction in the new era?

  • 11
    1

    Sir,
    Why blame GOTLER? Poor guy feels turned-on by violence against helpless victims who obstruct his path. He can’t help it. That’s his insticnt. Indeed, GOTLER has never hidden his FETTISH for abductions, beatings, torture and killings. He even admited that on national TV more than once. Real culprits are the 6,9 million so called ‘SINHALA BUDDHIST’ utter fools who voted such a sadomasochistic pyschopath into Sri Lanka most powerful office, The Presidency. Despite GOLTER’S well-documented, unbelievable track record of seriously bloody crimes.
    Let the party begin!
    PS: In fact, going by social media posts, a large chunk of the 6,9 million vote bank of bloody fools, is now feeling horny about implementing a corrupt Rajapssa Family run, Military Style Rule Sri Lanka as a solution to all our problems.

  • 8
    4

    Barbarism,terrorism,buddhism……
    Triple gem

    • 1
      0

      Smart alec you meant Hinduism. The LTTE terrorists were Hindu. Even today you can visit a Kovil and see animal sacrifices. Savages.

  • 7
    1

    The question is whether it is right to call Srilankan constitution instead of Buddhist Sinhala constitution or Mahinda Family constitution?
    Today, 35 state and deputy Sinhala ministers were appointed by Sinhala President. This shows Tamils and Muslims are not part of this country. This is to get a two third Sinhala only majority in the parliament. In other words Mahinda family wants to divide this nation in language basis. True face of the lion is now coming step by step. What is next?

    • 1
      0

      Ajith, its a pity that the president of our country has to choose his team from a group of elected nitwits in parliament. We should amend our constitution to bring some elements of the US constitution to the presidency. For example, the president should be able to choose his cabinet among 15 eminent, non-elected professionals from outside of parliament. That way the president would nominate the best 15 professionals based on their expertise and get parliament to endorse them. These would run the ministries and departments and would be answerable to parliament. Just image a senior FRCS surgeon as the Health minister or an Environmental Scientist running the Depart of Environment. A professor as Education minister or an Ex-pilot as the Minster of Aviation? Or how about an ex-Bank CEO as the minster of finance?
      If we have such a system, none of these gamayas, madayas and motta-pala dumbwits would be running the country.

  • 5
    1

    Ruwan: The people of Lanka had Hobson’s Choice at the elections, and the reason that Gota won is because of the US Saudi-Israel owned ISIS Easter Sunday terror attacks against Sri Lanka’s economy and society.
    Easter Carnage was a huge wound to the national psyche that you have forgotten at the behest of your paymasters (?).
    Also, Lankans are tired of all the US-EU fake Human Rights and fake reconciliation bullshit to promote corruption and US project of military bases in Lanka….
    Gota was a US citizen for 10 year so why did not Trumpland try him and lock him up for HR abuses in Califonia when they had the chance, rather than staging the Human Rights and fake reconciliation shows in Geneva and elsewhere?!
    Also check out the US-UK illegal occupation of Chagos Islands where US and CIA has a military base just south of Lanka which the ICJ ruled must be decolonized so that Chagos Islands people may return home. Human Rights and reconciliation is a cynical farce these days..

  • 6
    2

    So, we have a murderous corrupt dictator as head of the government, as most of us voted for him.
    The international community knowing all this, is inviting him for visits.
    The only remedy is with parliament and the judiciary.
    The former has passed laws to enable him to be immune to judicial proceedings, and the latter depend on him for survival. All clergy are with him.
    If his immunity is rock solid, nothing can be done, unless there is a mass uprising.
    None will commence/carry on such a task. He knows this.
    “People/Nations get the government they deserve”
    We can only pray.

  • 7
    5

    People are fed up with your repeated list of disappearances, murders, and other criminal cases. What did you guys do during the last 4 years without taking action against the perpetrators of those alleged criminal acts.
    People have no unlimited time. They like to get back to daily businesses and expect the government to work like them very hard!
    When the Yahapalana leaders started their work by looting the Central Bank, not just once but twice, what do you expect from the average voter of this country? To vote back them to power, then wait for another mega robbery?
    Just write something timely.
    By the way, I didn’t see Thajudeen’s name in the above article. We have already missed him. How did it fall out of the list? Please do not discriminate against the Muslims!

  • 11
    4

    Constitution in Srilanka is for Sinhalese only. Almost 75% of Sinhalese love Mahinda Family blood Buddhism and the constitution is very useful and give freedom for Mahinda family to do anything including killing. Gota has employed all Sinhala political thugs and criminals as ministers , deputy ministers and state ministers. This highlights future of Srilanka.

  • 1
    1

    Article 35 [1 ] in our constitution could be referred to as the James Bond clause. Would it be that the creator of James Bond – author Ian Fleming thought of this scenario in his The man with the Golden [BOLT ] GUN?

  • 7
    4

    Welcome to Sri Lanka under Gotabhaya’s dictatorship! Everyone should boycott Sri Lanka until the corrupt dictator-in-chief leaves office. Already the dictator has begun purging the government and cracking down on dissent and abducting citizens. The “white vans” will soon make their rounds. Tourists should not visit the island so the Sri Lankans who voted the criminal in can suffer financial hardship. Who wants the hospitality of a bigotted dictatorship? The irony is that the racist nationalists celebrate their “Buddhist” motherland but the country could hardly survive without foreign aid and revenue from tourism!

  • 2
    4

    Sri Lankans, do not fear. Specially the Tamils and the Muslims who did not vote for Gotabaye. India under MODI is not a push over and they will be watching with hawkish eyes . Gotabaye, will be given instruction on how and why the North and East polity is managed with autonomy given to Tamils and Muslims within a unitary state. I would not want Gotabaye to either disrespect or sweep it under the carpet, Indian wishes. Modi is not Dr Manamohan “ Puppet” singh.

  • 4
    1

    Jeyaka, see the news paper. It did not take a week to start White Van operations. Swiss embassy made an official complaint. A Lankan female working there was kidnapped and threatened . She was repeatedly asked about Nilantha , who seems to have some documents which the government wants it back desperately.

  • 2
    2

    Gota was elected through a democratic process. Keyboard warriors, including Eelamists and white lawyers, are free to continue making their baseless allegations on the Internet. Since the Internet is large enough to hold any amount of rubbish. However, don’t expect Gota to investigate himself any time soon. Also, don’t expect India to intervene and impose arbitrary “solutions”. The days of paripu drop and Western intervention are over. There will be no federalism in the mythical Dravidian homeland. For the first time since Independence, the majority have elected a President who does not have to waste time pandering to opportunists.

  • 4
    2

    Ruwan, the difference is after six months of nationwide protest a divided Hong Kong public voted for their freedom and democracy (what is right for the nation and people). Where as Sorry Lankans after 30 years of civil war voted not for their well being but to cause misery for others (minority).

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