By Rajan Philips –

The second anniversary of Anura Kumara Dissanayake’s election as President has come and gone, but not before getting marked by a spate of judgements delivered and announced on a single day following the anniversary. Far away in New York, it has been a week of speeches by state and government leaders making their pilgrimage to the 81^st Annual Sessions of the United Nations that is entering its ninth decade.  President AKD did not make the trip this year to the UN  Sessions, which are now reduced to being a convenient meeting place for world leaders to hold sideline meetings on bilateral as well as other contentious matters.

Sri Lanka is not in the crosshairs of any such contentions, but there are enough internal crosshairs that the NPP government and a feckless opposition are constantly trying to avoid. The day of judgements too has come and gone.  All in all, it was a good day for the NPP government, at least in the sense that the government suffered no reputational damage from any of the three judgements. There were two Supreme Court rulings, one on the bill for the 22^nd Amendment to the Constitution and another on the constitutionality of the Anti-Corruption Amendment Bill. The third court ruling was the verdict given by the  Colombo Permanent High Court following the Trial-at-Bar of 24 people accused for their role in the 2019 Easter attacks.

Easter Justice

The three trial-at-bar judges, Navaratne Marasinghe, Ramanathan Kannan and Sujeewa Nissanka, reached a unanimous verdict and found 15 of the accused guilty and found the other nine not guilty and released them forthwith. The accused were spared of the death sentence, but the lengths of rigorous imprisonment sentences are just as bad. One was sentenced to 260 years, four got 240 years each, five 220 years, and another five 200 years. In addition, the court ordered the instant confiscation of the movable and immovable assets of all 15 found guilty.

The verdict marks a substantial milestone in the search for justice on behalf of the victims of the Easter attacks. The government can claim some political credit for the conclusion of the trial after seven years of fits and starts, and high level stymying under three presidents who preceded President AKD. Much greater credit of course belongs to the hundreds of law enforcement officials who built up a mammoth case of 23,270 charges against 25 suspects (one of whom died in hospital during the trial) and won convictions of 15 of them.

But this is not the end of the journey for those seeking Easter justice based on the whole truth. There are other trials going on and the elusive mastermind is yet to be found. Mohammed Ibrahim Mohammed Nawfar (alias Naufar Moulavi) is one of the 15 convicted by the Permanent High Court. Naufar Moulavi was identified in May 2021 as the mastermind by the Gotabaya Rajapaksa government. The government claimed that FBI investigation had confirmed it. This claim is not supported by the FBI affidavit filed by agent Merrilee R. Goodwin in a US Court in California, in December 2020.

The purpose of the FBI affidavit was to support the indictment of  Mohammed (Moulavi) Naufar, Mohamed Anwar Mohamed Riskan and Ahamed Milhan Hayathu Mohamed “for conspiring to provide, providing, and attempting to provide material support to a foreign terrorist organization, namely ISIS” (Islamic State of Iraq and al-Sham), in violation of US laws. But neither Naufar nor the other two were identified as masterminds. The only mastermind identified in the affidavit is “Jahran Mohamed Cassim, also known as (“aka”) Mohamad Cassim Mohamad Zahran, aka Zahran Hashim (“Zahran”). Zahran killed himself in the suicide bomb he detonated, along with scores of victims, and spared himself from earthly trials.

To close the loop on this, the three men identified in the FBI affidavit, namely, Moulavi Naufar, Mohamed Riskan and Ahamed Milhan, are among the 15 convicted by the trial-at-bar High Court. But their conviction does not bring closure to the enduring question whether there was a political mastermind(s) behind the 2019 Easter attacks. There is still no clarity on what the former Attorney General Dappula De Livera publicly alluded to as evidence of “a grand conspiracy behind the attacks that killed 269 people and injured over 500.”

That was on 18 May 2021, and the statement was a follow up to the letter that Mr. De Livera had written on the state of the police investigations, to then Inspector General of Police (IGP), the late C. D. Wickramaratne.  Mr. De Livera soon went on to retire after a remarkable prosecutorial career, and reportedly turned down the government’s offer of appointment as High Commissioner to Canada. Mr. Wickramaratne himself has since died under rather tragic circumstances.

Those who allege that the Catholic Church is making unproven allegations about Easter attacks masterminds, conveniently gloss over the fact that the Church is not accusing anybody of being a mastermind, but is only asking for a thorough inquiry that will put to rest, once and for all, the perennial question about the Easter mastermind. The difference now is that after suffering frustrations with three presidents and their governments, the Church is experiencing a positive response from the current president and his NPP government.   

Amendment Politics

Aside from the lawfare politics of the Easter attacks, the politics of the 22^nd Amendment to the Constitution is running its course after the Supreme Court ruling that a referendum is not required for the amending bill to become law, but only a two-thirds majority in parliament. The ruling was widely expected but not because of some ‘fix’, but because it would have been silly to find a judicial reason to have a referendum on the retirement ages of judges. This is not to absolve the government for its missteps on this matter and for putting everyone through months of constitutional contortions. Rather it is to highlight the absurdity of getting exercised virtually over every constitutional amendment and insisting that enacting the amendment without a referendum is tantamount to an assault on democracy. The referendum requirement has become a constitutional curse.

The 1972 Constitution of the First Republic had a very straightforward amending procedure with no referendum requirement, so straightforward that JR Jayewardene was able to throw out a whole (1972) constitution lock, stock and barrel, and replace it with his new constitution of a totally different (presidential) persuasion, simply through a parliamentary select committee process and a two thirds majority in parliament. No one called for a referendum to justify so momentous a change, but now a referendum is required to determine at what age a superior court judge can retire. Nonetheless, as President Jayewardene’s  admirers and followers celebrate his 120^th birth anniversary, there is no gainsaying that regardless of whether one agrees or disagrees with his presidential achievements and legacies, JR Jayewardene was without question the most consequential political leader of Sri Lanka in the 20^th century.    

In the 21^st century and on the 22^nd amendment, with no referendum required, the Bar Association is changing tack and calling on parliamentarians to vote with their conscience, without toeing the party line. After Friday’s vote, it may want to poll the MPs to find out who among them voted listening to their conscience, and who toed the party line. The Association may be having a difficult time going through the withdrawal syndrome after months of heightened exertions. As for the opposition and Sajith Premadasa, the latter has simply promised that a future SJB government will repeal the 22^nd Amendment. To what end? To reenact another episode of confusion and distraction.

An Economynext commentator has described the Supreme Court ruling on the referendum requirement for 22A, as being “surgical in its constitutional analysis.” Well said. The ruling plausibly addresses every  good and bad argument that was flung at the judges and demonstrates, citing copious precedents, that at the end of the day, no matter who the individual judges and their abilities are, and what anyone thinks of them, the ‘Court’ can find its collective voice and express itself with clarity and authority.

The same Economynext commentary interprets the 22^nd Amendment as “a foundational prerequisite for operationalizing the newly enacted, stringent Anti-Corruption Act, which is a key commitment of the government era for the IMF.” The commentary suggests that “multiple clauses in the 22nd Amendment are designed to satisfy governance and anti-corruption structural benchmarks within the ongoing IMF Extended Fund Facility (EFF) agreement.” While noting the risk of scaring investors who might view 22A as being anti-democratic and antithetical to judicial independence, the commentary goes on to opine that the passage of 22A combined with a strong and systematic anti-corruption drive could be a boost to investor confidence, especially in the critical sectors of logistics, renewable energy and technology.

The above is an interesting interpretation even though I am not sure whether anyone associated with the government has formulated the intentions of the 22^nd Amendment quite this way. Objectively, the argument is plausible and will justifiably rile the ire of the left opposition to the NPP government and its inclination towards the IMF. At the same time, there is no mistaking the government’s intention and determination to fight corruption in politics and public life. Apart from, or rather as part of, its arresting politics, the government is also going ahead with the passage of  the Anti-Corruption (Amendment) Bill, which too has had its determination by the Supreme Court, albeit by a different three-judge Bench, almost concurrently with the 22A ruling by the five-judge Bench. The Supreme Court’s determination on the Anti-Corruption Bill was triggered after it was challenged by Transparency International Sri Lanka.

But unlike the SC ruling on 22A, the ruling on the Anti-Corruption Bill singles out a provision as requiring approval in a referendum for its enactment. The provision involves Clause 17 of the Bill which elevates the bail granting threshold for determination by a High Court and not a Magistrates Court as currently practised. The subject offence involves a bribe not less than Rs. 100,000, or causing a government loss of not less than Rs. 500,000. The Court held that such a change infringes the fundamental rights of citizens against arbitrary detention and will require a referendum approval. The Bill of course could be passed without a referendum after removing the specific provision. Remarkably, the government argued that the proposed amendments to the Anti-Corruption Act are necessary to remove current bottlenecks, achieve conformance with UN standards, and comply with the IMF program in Sri Lanka.