17 October, 2021

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Attorney General In Conflict Of Interests: Pressure From European Union Restores Justice

By Tassie Seneviratne

Tassie Seneviratne

The severe castigation of the police and the lower courts, by the Court of Appeal, (CA) calls for investigations into the undue incarceration of D/CID Shani Abeysekera. He had languished in remand custody for 10 months during which he contracted Covid-19 and suffered a heart attack and was forced to undergo surgery, the CA remarked.

The Court of Appeal (CA) has stated inter alia: “The allegations against the suspect Shani Abeysekera are a result of falsification and embellishment and a creature of after-thought”. Noting  that the witnesses against Abeysekera had waited six years to make the allegation against him, the CA has stated: “On account of the said unusual and extraordinary delay, the complaint has not only lost the benefit of the advantage of spontaneity, but also smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect Shani Abeysekera, for collateral purposes.

“Not only that the said delay has not been satisfactorily or credibly explained- It is crystal clear that the statements given by the said witnesses in 2020 are contradictory to statements given by them in 2014.”

The judgement of the CA calls for a vigorous investigation with a view to prosecute the set of collaborators or conspirators in this heinous crime. The Police Spokesman was heard on TV, stating that the police would await directions and guide lines re follow up action. So, the ball has been passed to the Hon. Attorney General’s court for directions. This is strange, as the AG’s directions were not required to investigate the delayed complaint against the CID officers. In the meanwhile, the voice of the people – the bar of public opinion, is screaming for justice.

But, can the AG direct investigations when he too has compromised his position by continuously objecting to bail in this case, which action the CA has described as unbelievable, in the strongest possible words? The AG did not give valid reasons for objecting to bail in the CA, whereas bail is due process, unless valid reasons are adduced for objecting to bail. The AG has thereby got himself into a conflict of interests. 

It is noteworthy that in the Magistrate’s Court (MC), the Magistrate directed the CCD to notice the AG forthwith. The MC however is in abeyance due to Covid-19, and in the meanwhile Shani is languishing under interdiction without pay.

Then what of the judiciary? The CA has also castigated the High Courts (HC) as can be deduced from its judgement. Bail application has been made to HC on 20th August 2020 and the AG was noticed to appear. The case was postponed on four occasions at the request of the AG to file objections. On 27th August the case was mentioned and postponed for 17th September, then for 5th October, 10th November, 26th November, 7th December and on 9th December order was given refusing bail as the AG objected to bail on the flimsy ground that suspect will interfere with witnesses – witnesses enjoying protection of such powerful collaborators or conspirators!

Bail application to the Court of Appeal (CA) has been argued on 15.06.2021 and decided on 16.06.2021. The CA judgement discussed above refers.

Furthermore, where is the supervisory jurisdiction of courts? I remember in the good old days, when judges such as Justice Sri Skandarajah would call for the case record on seeing anything untoward from reading the newspapers or from whatever source, and ensuring that due process was followed. Those judges did not do so for the pleasure of it. The supervisory role was a duty cast on them. It is so even to date, the difference being that now we do not see superior judges asserting their role.

This bail application case was also subjected to Laws delay that vitiates due process and tells heavily on litigants, whilst benefiting lawyers, and courts are ever ready to grant dates. In this case too we saw a judge recusing himself on one date and another absenting for reason of travel disability, on another date, though he was able to travel elsewhere! Laws delay is in effect throwing away all that Lady Justicia stands for- it is turning manna to bitter gall.

At a glance this episode may seem to be a dispute between officers of the Criminal Investigation Department (CID) and officers of the Colombo Crimes Division (CCD). There is more to it than meets the eye. The CID investigation was conducted in 2014 and no valid motive had been adduced for fabrication of evidence. The CID case against DIG Vas Gunawardena has stood the test of a trial at bar and appeals to higher courts, that convicted the accused. The CCD investigation, on the other hand, has been initiated on the findings of a Presidential Commission of Inquiry into political victimization 14 years later, giving no valid reason for the delay to make the complaint.

The CA has pulverized the evidence of the CCD witnesses and pointed out that it is a concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to suspect Shani Abeyrekera, for collateral purposes. This makes it clear that saving former DIG Vas Gunawardena is incidental. The collateral purpose of discrediting Shani Abeysekera, is to save high profile persons who have been implicated in investigations conducted by him, as perceived by the CA to be the real motive.

Let us look at reality in the face. The consensus is that it was the pressure exerted by the European Union (EU) that turned tables to mete out justice to Shani. Where are we heading?

Have we come to a situation where we have to seek intervention of the European Union (EU) and the United Nations Committee for Human Rights (UNCHR) for justice?

*The writer is a retired Senior Superintendent of Police. He can be contacted at seneviratnetz@gmail.com

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Latest comments

  • 13
    1

    It’s great on the part of of a retired SSP to have written this biting criticism in such pungent language and to have argued so forcefully. Having given an appropriate caption “Pressure from EU Restores Justice”, he has placed the sullied defaulters in place. In decades past if elites in the nation’s polity had brought infractions of the law and faults in the course of administration to clear international view, great institutions could have come in support.

    Let the bold decision of the Court of Appeal and the potent responses of society leaders, step on the toes
    of those who defile what is right.

  • 16
    1

    The bottom line is, the criminal justice system in Sri Lanka has long ceased to mete out justice to the people. Instead all its components – law enforcement, judiciary & corrections – are actually functioning to subvert the rule of law in the interests of the powerful and the corrupt, and to keep the ordinary people subservient to the ruling class.

    • 18
      2

      [Contd. from above]
      .
      What is great about Gota is, he’s doing it in your face, in open defiance of the whole world, without realizing the grave consequences for the country and himself – because he’s a stupid fellow who can’t make a speech for even 2 minutes without a teleprompter but finds himself now a virtual dictator controlling the fate of 21 million people, with backup from China.

  • 10
    1

    ” The allegations against the suspect Shani Abeysekera are a result of falsification and embellishment and a creature of an afterthought” the two Judges, Justice Bandula Karunaratne and Justice Ratnapriya Gurusinghe wrote. Didn’t the “Peoples’ Prosecutor” – the Attorney General SEE this “FACT” in this case? How many times, on flimsy excuses he contributed to the denial of bail to the accused? Isn’t he “ANSWERABLE” to the “Peopless’ Court” for serious “Misconduct” and “Failure” to discharge his duties by the people? He is and in his heart, HE knows it. That is why he “REFUSED” to accept the offer of the High Commissioner posting to Canada. He also KNEW that Canada would definitely REJECT him being the Representative of Sri Lanka, because “SA’s” case has received international attention together with the AG’s “Disgraceful” manner of handling of the matter.

  • 8
    1

    Part II: The writer says: “Where is the supervisory jurisdiction of Courts”. Interesting question. This question must be raised in relation to the judgment of the “Rajapakse Memorial” – “Nidoskota Nidahas”.
    In that case, “7” were charged, including the then Secretary of Defense and the present President. The President “Got Off the Hook” by citing a provision in the Constitution. The charges were “Misappropriation” of funds belonging to RDA to build a “Memorial” for the Parents of Rajapakses. After (years) the case was filed, an “Instalment” was “Repaid”, which itself was the “Proof” of the charges. What happened a few days back when the case was taken up against the remaining “6 Accused”? The “Defendant’s” Lawyers stated: The entire sum (36 million) drawn out of the funds of RDA has been paid back and requested the courts to FREE the six accused. The Courts (the Special Courts) asked the opinion of AG. The AG said, ” We are not proceeding with the case”. The Courts entered the verdict “Nidoskota Nidahas”.
    Now, “where is the Supervisory Jurisdiction of Courts”? Now, anyone can “Misappropriate” funds of Public Institutions, and if charged, immediately “Refund” the money and get a “Verdict” – Nidoskota Nidahas. (Discharged Innocent). If not “Charged”, just LIVE with the “LOOT”.Just think what “AG” has done and what the Courts have done.

  • 11
    1

    “The consensus is that it was the pressure exerted by the European Union (EU) that turned tables to mete out justice to Shani. Where are we heading?”
    I don’t think it is correct to conclude that justice is made to Shani completely due to the pressure exerted by the EU. He has already got Corona and heart attack during the period in jail. The lifespan of Shani is now reduced and how long he can survive under this regime is a question. It was learnt from the past many who were released did not live for long.
    Rajapaksas are opportunistic and tactful in cheating not only international players like EU, USA, India and China but also our opportunistic politicians and religious leadership. The opposition also do the same politics.
    Where are we heading?
    That is why all those real criminals and corrupters are safe under both regimes. Not a single Easter bombing culprits are punished, not a single big bribe and corruption culprits are punished Bond scam, MIC deal), not a single LTTE leaders who shipped arms or attacked Daladha maligawa are punished but our politicians became rich & rich and people became poor and poor and the part of Sri Lanka are being sold.

  • 2
    2

    Sentence of the author quoted verbatim “The consensus is that it was the pressure exerted by the European Union (EU) that turned tables to mete out justice to Shani” is of interest. Does the author therefore mean that the judgement of the CA would not be so had not for the pressure of the EU? I think he is going too far. There are blokes who would call a spade a spade despite all odds and even without the safeguards given for judges of superior court of record. The author does not recount the languishing in remand custody of other Police or ex-Police officers for nearly one year for being involved in high profile cases which had political interest one way or the other. Had he called for greater professionalism of the system then that is a point to appreciate. The author should refer to the “Parti Liyani” case in Singapore. There again the whole thing stood right only after an Appeals Judge called a spade a spade. As a result of the judgement, lapses of counsel involved in prosecution, the Police Officers are under scrutiny, however not that of the trial judge. Who judges the judges? NONE.

  • 10
    2

    No one in the Judiciary has exhibited the style and manner of Justice Sri Skandarajah or Justice Alles of the late 60’s/70’sdisplayed during their tenure, when the freedom of Jurisprudence at its best.
    The decline started then, and gone down to horrifying depths since the latter day CJ thought it fit to overlook and exonerate the person charged with fraud of Tsunami Funds and tender public apology at a public rally. Then we had a person who was willing to give the verdict desired by the political head of government.
    That was the death knell and to salvage the lacuna we have no alternative but to look for foreign judges who are not dependent or servile to local politicians to provide that kind of Justice! SAD

  • 8
    1

    Dear Mr Seneviratne,
    .
    thanks for your article.
    It is really sad to see the way Mr Shani Abeysekara has to struggle today with his life in his country where he fought fearlessly against injustice. Human rights violators have become the leaders mariginalising HR promoters. His case is known to any western country and entire family will be given them asylum and be protected them. Stupid power greedy idiots in leadership would not think twice, even if world would look at us calling ” another state like Belarus/North Korea is in making”. This could easily be changed if LOCAL media would become independent…. that seems to be far from achieving though.
    If GR as the defacto president (illegal man to hold the office according prevailing laws in the country) of the god punished country would continue his mlechcha politics filled with revengeful acts to anyone who stood against high crimes, how can he ever be exemplary as a leader ?

    How would parents and teachers nurture their young ones as to why such personalities like SA were attacked. ? At the time, visiting british tourist was killed by an act of a gang led by Rajapakshe supporter/PS leader from Tangalle, nothing worked serving the justice, until Prince Charles himself involved in getting the man imprisoned remember ?

  • 5
    0

    All most all supreme courts are cowards because of that already 04 so called supreme courts judges have refused to hear and sit on the bench to hear the fundamental application filed by RISHARD BADURDEEN.WHY ARE THEY SO SCARED TO HEAR THE CASE.THEY MUST BE FEELING THAT THIS CASE AGAINST BADURDDEN IS FABRICATED AND FILED AS POLITICAL REVENGE.LAW AND ORDER AND JUDICIARY IS IN A MESS IN SRILANAKA.THEY MAY BRING SOME JUDGES FROM CHINA TO HEAR CASES LIKE THIS-JAYWEEWA TO ALI SABIRI.

  • 0
    1

    This feature has disappeared: “Shani Retires As Senior Superintendent Of Police As Fears Mount For His Security” Wonder why?

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