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