Launching a blistering attack on the Presidential Commission of Inquiry (PCoI) on Political Victimization, Jaffna District Lawmaker M.A. Sumanthiran said the Commission had been led by a “disgraced” member of the judiciary and blatantly interfered with the judiciary.
“This Commission is worse than any kangaroo court,” the TNA MP said, in a 26 minute speech during an adjournment motion on the PCoI on Political Victimization, accusing the Upali Abeyratne commission of interfering in hallowed procedural safeguards in Sri Lanka’s criminal justice system.
Sri Lanka had laws to prosecute those who seek to interfere in the due administration of justice, the member of Parliament who is also a President’s Counsel explained. The law was called the “Inter-medddlers with Suitors” he said.
“These three commissioners to the extent that they have extended the mandate given by the very warrant that appointed them, blatantly have inter-meddled with suits in this country. They have interfered with what the Attorney General does in this country.
The Commission had also made demeaning remarks about a magistrate in its report, in the complaint made by Pillaiyan, Sumanthiran said. That magistrate currently serves on the High Court, he added.
“How dare this commission, as I said (led by) a disgraced judicial officer about whom the whole country knows, make such statements against a functioning judge? Who gave him the right to do that? Not even the warrant by which he was appointed gave him the right to make pronouncements against judges like this. Judges are not public officers as defined in the constitution. MPs are not public officers as defined in the constitution. Clearly outside the remit that is given to this commission, they have gone and made these recommendations,” he charged.
In the absence of authority to strip citizens of their civic rights, the PCoI has also recommended, unprecedentedly, that the President appoint a Special Commission of Inquiry to perform that task.
“This is a hell of a how-do-you-do. Pardon my language. But it is a hell of a how-do-you-do,” Sumanthiran charged. “That you don’t have the authority to do it, and so you are telling the President because we don’t have the right to do it, appoint another commission – a puppet commission – just to do what we would have liked to do.”
President Gotabaya Rajapaksa, he said, had gone ahead and appointed just such a commission.
The Commission has recommended MPs be stripped of their civic rights on the basis that they were members of an Anti-Corruption Committee and such committees were not referred to in the constitution. By that token, the TNA MPs said, the Covid Task Force headed by Gen. Shavendra Silva was also unconstitutional and based on the argument made by the PCoI on Political Victimization, both the Army Chief and the President should be deprived of their civic rights.
“When one reads through this report one cannot give it any credibility. More than the fact that it has exceeded its mandate, even where it purports to act within its mandate, it has gone against the judiciary of this country, rule of law and has sought to make a mockery of the system of justice in this country,” the Jaffna District MP said.
See full speech here:
Full transcript of M.A. Sumanthiran’s Speech in Parliament on April 21, 2021.
Thank you, Deputy Chairman of Committees for the opportunity to speak on this Adjournment Debate on the report that has been presented by the Commission of Inquiry into Political Victimization. Right at the outset, I must say that when appointing members to committees such as this, customarily the President of the Republic says and I am reading from the Gazette Notification on which these three commissioners were appointed dated 9th January 2020.
It says “Now Therefore I Gotabaya Rajapaksa President of the Democratic Socialist Republic of Sri Lanka, reposing great trust and confidence in your prudence, ability and fidelity do in pursuance of the provisions of Section 2 of the Commissions of Inquiry Act appoint you and so on…
He has confidence in their prudence, ability and fidelity. Then you look at the names of the three persons who were appointed, you wonder why he chose those persons. A disgraced member of the judiciary who was interdicted for misconduct, sent on compulsory transfer. About whom books have been written and published – the famous book, Unfinished Struggle by Victor Ivan.
Former IGP Chandra Fernando had the Supreme Court impose fines before he retired. These are the persons the President considered – and when one looks at the report and the way in which they have functioned, we understand why such persons were handpicked by the President to do this hatchet job. They have done this every well, the job that was given to them to do.
Firstly they were given a task of receiving complaints from public officers, employees of public corps, members of armed services and police. Over and above such complaints, they have entertained complaints from various other persons who do not belong to any of these categories.
This appointment – the original mandate was later expanded to include the CID also, seriously undermining the criminal justice system that we have in our country going back over 100 years. There is a particular system by which the CJ system works. The AG as the chief law officer of the state is given recognition both in the CPC now in the constitution as well by virtue of the appointment which seeks to make him independent by various judgments of the courts – which recognized the prosecutorial discretion of the Attorney General. It is the Attorney General and the Attorney General alone who exercises that independent function and is reposed with that prosecutorial discretion.
In our system an accused person is presumed innocent and afforded all rights, even the right to remain silent, make a dock statement to avoid cross examination, he is given the choice of jury – three times he can reject the panel of jurors without giving any reasons. The whole system is designed to ensure that even if 100 criminals walk free, an innocent person should not be found guilty. That is the system and the system functions in that way because the judiciary functions.
Beyond the fact that the Attorney General – an independent officer decides to indict somebody – it goes before a Magistrate’s Court or a High Court. Then you are afforded the opp of two appeals. Ordinarily there are two appeals. If it was a Trial-at-Bar only one appeal but before five judges of the Supreme Court.
Field Marshal Sarath Fonseka referred to two of those cases so I don’t want to refer to that, but mention that all of those accused persons have had the opportunity of being defended before the trial court and had the opportunity to appeal against their conviction and sentence.
When such is the system that we have, we have this Commission interfering in this hallowed procedural safeguards. In fact there is a statute called the Inter-Meddlers with Suitors in our statute books. If anybody interferes in the due administration of justice, that person can be brought before court, indicted and found guilty and be sentenced. These three commissioners to the extent that they have extended the mandate given by the very warrant that appointed them, blatantly have inter-meddled with suits in this country. Have interfered with what the Attorney General does in this country.
The Commission of inquiry acts have been abused in this country repeatedly. Most famously in the case of the former Prime Minister, first woman prime minister of the world, Sirimavo Bandaranaike who was found guilty by a Special Presidential Commission of Inquiry appointed by President Jayewardene and deprived of her civic rights. How that happened is worthy of mentioning in this because of some of the recommendations made by this commission. Mind you this is a Commission of Inquiry and not a Special Presidential Commission of Inquiry.
This Commission has no right to recommend the depriving of civic rights of anybody. The Act does not give them that right. But they make that recommendation. When Mrs Bandaranaike was deprived of her civic rights, all the people seated on that side….
[Interruption: Mahindananda Aluthgamage]
Mrs Bandaranaike was charged with allegations of abuse and misuse of power and corruption and then the Court of Appeal granted her a Writ of Prohibition against that Commission. Retrospectively an amendment was brought to the Act so that the Special Presidential Commission of Inquiry could find her guilty. A bill was brought before Parliament and she was found guilty and expelled from Parliament in 1980. The day after her expulsion, two sudden amendments were brought to the Parliamentary Elections Act preventing any person who is disqualified by a Resolution from participating during the period of disability during a parliamentary or presidential election. Such was the witch hunt against Mrs Bandaranaike – and this Act was used.
Those in the front rows of the Government today know very well what a Draconian law this is, and how it was used against their own party leader.
They have now chosen to do it in a much worse manner than even President Jayewardene did. Here is an ordinary Commission of Inquiry, not a Special Presidential Commission of Inquiry, consisting of members of dubious distinction making recommendations to deprive civic liberties of opposition members of parliament.
If you look at the Act, the Act does not empower the making of recommendations against members of Parliament. It is only against Public Officers, and by an amendment later, Public Institutions, local councils etc. So very clearly gone out of their mandate and given this report.
Because of a lack of time I will quickly refer to some examples, but before I do that I will make a disclosure under Clause 19 of the Code of Conduct for Members of Parliament, because I am personally interested in the matter. I know MPs speak about all their personal matters without making this disclosure, but knowing that this is the rule, I will make a proper disclosure.
There is a person called Sivanesathurai Chandrakanthan now an honourable member of this House. He is called Pillaiyan. There is a complaint this Pillaiyan has made that he was wrongfully accused and arrested, some evidence had been fabricated against him, and two of the co-accused made confessions against him and therefore he was deprived of his liberty for five years.
Now in that case, that confession was made before a magistrate, not to a police officer like what you normally do in a PTA case. Torture a person, extract a confession and a ASP signs below saying this was voluntarily given before me. No, this was made in the Magistrate’s chambers. It was admitted as valid evidence before the High Court at the trial. And the accused person Pillaiyan appealed to the Court of Appeal and the court of appeal held that the confession was not validly received. So he had his right. Right or wrong,the Court of Appeal threw out the confession.
Thereafter the Attorney General felt, now without this confession there was not enough material to continue with the prosecution so the AG entered what we call nolle prosequi (Latin phrase meaning “will no longer prosecute”) and released Pillaiyan. That happened in the ordinary course of judicial proceedings. Right or wrong, he was able to be released in the ordinary way. But what happened before this Commission?
In this Commission, he has made complaints against four persons, and the first is myself. MP Sumanthiran and three police officers. But when you read the report on this, there is nothing about me at all. Absolutely nothing. Even about the police officers, they actually took him to the magistrate. The confession was made before the magistrate. But there is a recommendation that you must prosecute those police officers and myself for fabricating evidence.
Now I have no knowledge of any of these matters. Neither does the report say that I had anything to do with this. Merely because Pillaiyan has mentioned me as a person against whom he is making a complaint, there is a recommendation that I be prosecuted for fabricating evidence. In saying that, very serious allegations are made against the magistrate. Demeaning things have been said about the Magistrate. That magistrate is now a functioning High Court judge.
How dare this commission, as I said a disgraced judicial officer about whom the whole country knows, make such statements against a functioning judge? Who gave him the right to do that? Not even the warrant by which he was appointed gave him the right to make pronouncements against judges like this. Judges are not public officers as defined in the constitution. MPs are not public officers as defined in the constitution. Clearly outside the remit that is given to this commission, they have gone and made these recommendations. Very funnily, the recommendation is that the Attorney General must discontinue the prosecution. At the end it says, the President must give him a pardon So they have covered all sides. Just in case the Attorney General doesn’t withdraw it and he is found guilty, now grant him a pardon.
This is just one example of the way in which this Commission has gone about doing what they have been told to do. In respect of civic rights since they (the Commission) does not have the authority to make that recommendation, they make a recommendation that the President must appoint a Special Presidential Commission of Inquiry which must make this recommendation that they (the PCoI on political victimization) would have liked to make. This is a hell of a how-do-you-do. Pardon my language. But it is a hell of a how-do-you-do. That you don’t have the authority to do it, and so you are telling the President because we don’t have the right to do it, appoint another commission – a puppet commission – just to do what we would have liked to do.
And the President goes ahead and appoints a commission such as that.
There are issues here with regard to a matter in which some police officers were found guilty of torture and murder in the Chunnakam police station. There were two appeals against that. There was a finding of guilt in the High Court, an appeal in the Court of Appeal and an appeal in the Supreme Court. Both appeals were dismissed. Those three police officers were found guilty of torture and murder. They were convicted under the Convention against Torture Act.
Now there is a recommendation (in this report) that those persons must be released. Now what does this Commission think it is? There is a functioning judiciary. The Attorney General wrote to this Commission and said do not interfere in my functions. Don’t summon members of the AG’s Department before this Commission. You have no right to do that. When two senior officers went before this commission and wanted to support the letter sent by the Hon. Attorney General, they were refused permission.
This is worse than any kangaroo court that you can imagine. And the Government, without any shame, is presenting this report to this House and even moving an Adjournment Motion wanting to implement its recommendations. Absolutely without shame. That is why, when they wanted to move the resolution, I said let them move it. How do you justify this?
The seconder of the motion who spoke for almost an hour today, complained about another commission in which he was not afforded the right to cross examine witnesses. In this commission, not only the right to cross examine, we have not even noticed. With regard to Pillaiyan’s complaint which I have talked about, I was not even noticed. I was noticed in about four or five matters in which I was told I am a respondent. I went before ethos commission and said if you have named me as a respondent give me the material on which you decided that I must be termed a respondent. The Chairman of the Commission said ‘yes yes you have all the right, we will give it to you.’ I said give it to me in the language I understand. ‘Yes yes yes you are entitled to translation we will give it to you.’ I didn’t get anything.
I raised a question of privilege here because the day I attended Parliament, when I went back home, I had a notice sitting at my house saying come before the Commission at 2PM that day. I saw it at 5PM. I immediately wrote to the commission. Every summons I have, I have responded. I have sent it by fax. I have intimated to the Commission why I was unable to attend. Twice I have attended. I intimated to the Commission that I was attending Parliament that day and I got the notice only at 5PM on that day. Despite that, after having got my letter, four days after getting my letter, the Commission Chairman makes a statement to the Press, saying ‘these these these MPs’ are evading the Commission. Now on that I have raised a matter of privilege, and the Hon. Speaker has referred it to the Privileges COmmittee. I hope the Committee will make the right decision in this regard.
What the Chairman told the press -“former MPs Mangala Samaraweera, Patali Champika Ranawaka and several others were named as persons evading the Presidential Commission of Inquiry appointed to Probe Political Victimization. Chairman of the PCOI Retired SC Judge Justice Upali Abyeratne instructed to name those individuals, together with MPs Rauff Hakeem, Field Marshal Sarath Fonseka, President’s Counsel M.A. Sumanthiran, R. Sampanthan, Anura Kumara Dissanayake and former MP Malik Samarawickrema for failing to comply with notice to appear before the PCOI.”
Now with regard to this Anti-Corruption Committee or whatever this Commission refers to, I had no knowledge of any such committee. We were never members of any such committee. We were never notified by the cabinet or anyone that we were appointed to any such committee. We did not attend meetings of any such committee. But even otherwise, how does that become a matter on which such recommendations can be made?
Now there is a Covid Task Force appointed by the President. Previously after the tsunami there was a task force. Various task forces were appointed by executive fiat. Can somebody say that because the constitution does not refer to such committees, that it was unconstitutional? If that is the case, the committee now headed by Gen. Shavendra Silva is unconstitutional and he must be deprived of his civic rights, and so must the president who appointed him to that committee.
When one reads through this report, one cannot give it any credibility. More than the fact that it has exceeded its mandate, even where it purports to act within its mandate, it has gone against the judiciary of this country, rule of law and has sought to make a mockery of the system of justice in this country. Thank you.