By S. Ratnajeevan H. Hoole –

Prof S. Ratnajeevan H. Hoole

The Daily Mirror (08.02.2025) reports that “The Bar Association of Sri Lanka (BASL), in a letter to President Anura Kumara Dissanayake, strongly emphasised that decisions of the Attorney General in criminal matters should not be subject to review by political authorities.” Such interference, would undermine the rule of law, it claimed.

This high-horse morality is from the BASL that unanimously condemned even before it was released the “Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka”, which concluded that credible allegations existed of serious violations of international humanitarian law committed by both the Sri Lankan government and the Tamil Tigers (LTTE) during the final stages of the war.” That report, authored by Marzuki Darusman, Yasmin Sooka, and Steven Ratner called for an independent international investigation.

This so-called unanimous Bar Association condemnation is even more astounding given the fact that senior Tamil members of the association were present at the meeting, and to their eternal shame, voted dumbly to condemn a report that was not yet released. They denied a massacre that now even the government no longer denies. The only other possibility is that the Bar Association lied about unanimous passage. (Hoole, Daily Mirror, 4 June, 2011).

In normal times, in a working democracy, an Attorney General should remain independent. But these are not normal times. The new NPP government holds a mandate to clean up the Sri Lankan Establishment which, until AKD took over as President, had been irrevocably corrupt. The AG needs supervision to uphold the rule of law, supervision that  the judiciary cannot provide.

It is unfortunate but unavoidable that when the system is corrupt, the political authorities need to step in. Therefore, the President and Prime Minister must be steady in their resolve to review the decision on the murder of one of Sri Lanka’s preeminent journalists.

Lasantha Wickrematunge was my Sunday Leader editor for whom I wrote regularly. I have seen firsthand his dedication to the truth. For example, when the Church of Ceylon made moves to make homosexual unions acceptable, I wrote “Anglican Bishops Worldwide Ponder their Sexuality,” August 31, 1997.  When the Bishop got wind of this, his high-powered lawyer threatened Lasantha. Lasantha asked me for all the evidence to my claims to be first kept with him, and then printed it. There was no peep from the Bishop after that. Such was Lasantha’s loyalty to readers and fierce commitment to freedom of opinion. No wonder that the corrupt regime eliminated him.

Bringing Lasantha’s killers to justice is in the national interest. But how can this be left, unsupervised, to an Attorney General’s Department that has shown itself willing to bow to political authorities? When past AGs have shown themselves shameless stooges perhaps hoping for a seat on the Supreme Court? When I was a Member of the Election Commission, the AG played games with the passage of election acts, subverting the rules to make amendments that pleased the Sirisena-Wickremesinghe regime. That AG was elevated to the Supreme Court.

There was a time when the judiciary held a strong moral code. For example, in the 1970s, Jaffna District Judge GC Niles never drove a car and asked his wife to drive instead. His explanation: “If I drove and violated a traffic law, and was then stopped by a policeman, would he be free to do his duty? And the Magistrate?” My uncle, Colombo High Court Judge John Gnaratnam Asirwatham was reluctant to visit people outside the family for fear that it would create a conflict of interest.

Now, however, we live under a corrupt judiciary. The principles of rule of law have been dismantled. In the early 1980s, JR Jayewardene intimidated the Supreme Court over its ruling against police officers attacking peaceful protesters. Jayewardene’s thugs attacked the houses of the judges.

Chandrika Kumaratunga joined in ruining the court when she picked Sarath Silva of the AG’s Department over many better qualified people for the Supreme Court. It was when SC judges dismissed the charges against convicted policemen over the murder of 27 detainees at Bindunuwewa in 2000 by Sinhalese villagers despite being guarded by 60 armed policemen. Dismissing the convictions by a more decent lower court, members of the Supreme Court claimed that those killed (including a 12-year-old) were members of the LTTE, even when it was known that some of them were forced LTTE conscripts who had sheltered with the government.

Then came Mahinda Rajapakse who threatened the Supreme Court when it ordered the government to establish the Constitutional Council in accordance with the 17th Amendment of 2001. The order was ignored by Rajapakse who unilaterally in  2006 appointed members to the Public Service and Police Commissions (Centre for Policy Alternatives).

As reported, Rajapakse ominously thundered, “Gentlemen of the judiciary might have forgotten about the time when the homes of judicial officers were stoned and impeachment motions brought against three Supreme Court judges.”

The worst under Rajapakse was his diversion to a private account of Rs. 83 million in tsunami  funds. An inquiry directed by then Attorney General, the much respected KC Kamalasabaysan, opened up a can of worms and the missing money was quickly put back by Rajapakse (establishing, as it is now accepted, that he had indeed stolen the money). Sarath Silva quashed the investigation as lacking in evidence despite Kamalasabaysan’s findings. Silva also fined people who were involved against Rajapakse. Kabir Hashim who made the complaint and IGP Chandra Fernando and DIG Goonetillake – like Donald Trump sacking FBI agents who dutifully investigated the 6 January 2021 riots he instigated.

All this happened when Chandrika Kumaratunga was President and Rajapakse her Prime Minister. What was Chandrika doing when money for those who had suffered from the tsunami was stolen by her Prime Minister? And the LTTE which for a bribe, blocked voting in their areas to help Rajapakase win?

And the lawyers? According to Tassie Seneviratne (Sunday Times, 26 Oct. 2014), a Senior Superintendent of Police, “lawyers appearing for police officers acquiesced to the arbitrary judgements of this CJ, probably, to insulate their practice before him.” Only attorney Kishali Pinto-Jayawardena took Sarath Silva to task for his perverted judgements. Seneviratne, commenting on Sarath N Silva’s admission of a mistake in his judgement, adds that this action of Silva’s was “but a deliberate malversation [corrupt behaviour in a position of trust], in an alleged crime against the nation, with a view to unscrupulously [enhancing] one’s personal ambitions is no ‘mistake’. This statement of the ex-CJ has now exposed a string of crimes committed by him and hitherto kept under cover by arbitrary judicial process.”

Sri Lanka’s judiciary has failed to uphold a track record of impartiality. It has called a conscripted 12 year old boy a terrorist, permitted the powerful to steal money meant for the destitute, and protected malfeasant judges. I have had horrible experiences with the Judicial Service Commission that safeguards terrible judges. Morally bankrupt, the judiciary has lost the trust of the people to supervise the AG.

Lasantha was an icon. He knew he would be killed but did not back down. He left behind a young family. After his murder, many good writers went abroad or became mute. We owe a proper investigation. Where political powers have long perverted justice, it is critical that the investigation into his murder is clear and impartial.

So who can really review the decisions of the AG on this sensitive matter? Only the  present government holds a mandate from all over the country. Not the judiciary. Not the lawyers. Not even internal Tamils who failed to show any backbone over the BASL’s Darusman report.

As Tassie Seneviratne pointed out, lawyers have shown no credibility because they depend on Supreme Court Judges for their practice. Many Supreme Court Judges also cannot be independent, because they were previously colleagues of the AG at the AG’s Department.

If the government fears being accused of political interference, there are good grounds to bring in outsiders who lack prejudice. If the government is worried about a backlash from the Sinhalese right, it is good to push for early decisions so that by the next elections the fallout would be minimal.  But the mandate to bring justice and challenge corruption is mandatory. It  must not be ignored.

There is no one in Sri Lanka – Sinhalese or Tamil, including myself – who can conduct an inquiry because of the social pressures that we would face for adverse findings. Claims of partiality against internal judges may also be plausibly made, damaging credibility of any inquiry. Justice needs people from outside.

Every Sri Lankan must support this government in helping to uphold its mandate and bring all criminals to book. I congratulate the government for keeping its promise step-by-step, especially to the Tamils in the recent weeks. The process may be slow, but the mandate must be fulfilled, and fulfilled well ahead of the next elections.

Post script: This article on reviewing the AG’s decisions is valid a fortiori after the AG reversed his position dated 27 January 2025 (Economy Next, 17 Feb. 2025), now telling the CID not to discharge the suspects. Obviously something is wrong with his decision-making processes.