The conduct of members of the upper judiciary in recent weeks has drawn questions about whether judges in Sri Lanka are afraid to hear controversial cases, especially those seeking redress against executive overreach, abuse of power and vicious persecution by President Nandasena Gotabaya Rajapaksa.
Former CID Director SSP Shani Abeysekera has borne the brunt of this affliction in higher court judges. Abeysekera was arrested in July 2020 and remained in police custody since. Over the past year in remand, SSP Abeyratne, one of the country’s finest criminal investigators, has suffered a heart attack, contracting Covid-19 and enduring emergency heart surgery.
On May 19, when Abeysekera’s bail case came up before the Court of Appeal, an eleventh-hour recusal by Justice P. Kumaratnam condemned the former CID Director to another three weeks in remand, despite his lawyers pleading for the case to be taken up on an urgent basis with Covid-19 spreading through the prison system.
Abeysekera, as a heart-patient with several comorbidities, is vulnerable to the virus which he already contracted once late last year. A second infection could be fatal and complicate his current medical issues.
However, with Justice Kumararatnam recusing on May 19, the case could not be heard by a single judge. The bail hearing was postponed until June 4, but this was not to be.
Abeysekera’s lawyers were contacted by the Court of Appeal Registrar, who informed them that the judge due to hear the case was unable to return to Colombo due to the heavy rainfall. The case has been postponed as a result for 10 more days.
Shani Abeysekera’s bail case is likely to be an uphill battle, with the new Attorney General eager to prove his worth to the political authority, sources told Colombo Telegraph.
Also on June 4, the fundamental rights petition filed by ACMC Leader Rishard Bathiudeen was postponed after a second judge listed to hear the case at Supreme Court recused himself. When the case came up before Chief Justice Jayantha Jayasuriya and Justices Thurairajah and Yasantha Kodagoda, the latter recused himself. Justice Kodagoda served as a criminal prosecutor at the AG’s Department before being promoted as President of the Court of Appeal in 2019. Since being promoted to the Supreme Court by President Gotabaya Rajapaksa mere months after he was elected to office, Justice Kodagoda is yet to hear politically charged, or controversial cases in the SC docket.
Justice Yasantha Kodagoda famously ruled in the citizenship and eligibility case brought before the Court of Appeal that nearly derailed Gotabaya Rajapaksa’s presidential bid. In his order dismissing the highly-charged case, Justice Kodagoda castigated the petitioners and accused them of being political mala fides, as he cleared the way for Gotabaya Rajapaksa’s electoral victory on November 2019, even as questions still remain about whether the current President ever legally obtained Sri Lankan citizenship. As a prosecutor at the AG’s Department, Kodagoda handled some of the Department’s most sensitive and complex criminal cases, including the 2006 MiG deal and the Keith Noyahr abduction and torture in 2008.
Bathiudeen’s FR hearing was previously postponed at Supreme Court after Justice Janak Silva recused himself on the basis that he had served as Chairman of the Presidential Commission that investigated the Easter Sunday Attacks. Bathiudeen was arrested by the CID and is being detained under the Prevention of Terror Act (PTA) in connection with the 2019 bombings. Significantly, Justice Silva’s Commission investigated allegations against the former Industries Minister and found no evidence of wrongdoing on his part in connection to the attacks.
Legal observers worry that the trend of judicial recusals was leading to endless delays for victims of persecution by the Rajapaksa administration. The postponements play into the Regime’s hands, the observers said, with those seeking redress from court against injustice being compelled to waste away in prison until a judge is willing to hear their cases. “The more controversial the case, the more likely you are to see several recusals. In Shani’s case or Rishard’s case, it’s clear that the judges might not want to make a decision that will anger or upset the government, which has made it obvious that it wants to punish these people as much as possible,” one senior lawyer told Colombo Telegraph. (Chinthika De Silva)