20 June, 2024

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Perversions Of The Justice System: Comparative Remarks On Sri Lanka & The USA

By Kumar David

Prof. Kumar David

This is not a book review; it is a political commentary making appraisals and judgements in my own style about perversion of justice in Sri Lanka and the USA and let me say straight away and upfront that though there are perversions in both nations they are of an entirely different genre. Survey of these differences is the purpose of this column and a synopsis of my thesis is this: The perversions of the justice system in Lanka flow from the very top, the president, prime minister, cabinet and MPs; the king pin is the president himself or herself (Chandrika). The perversion of the justice system in the USA is systemic and ingrained in prosecutorial, Grand Jury and plea-bargaining procedures and in the ambitions of some official’s in the Department of Justice, the FBI and “Special Agents”. It is this political side not the personal aspects, though fascinating, of RR’s book that I make use of. I will make judgemental remarks comparing the US and Sri Lanka at the end, after I am done with the descriptive part of this piece.

Uneven Justice by Raj Rajaratnam. Post Hill Press, New York.
ISBN: 978-1-6378-281-7; ISBN (eBook) 978-1-6378-280-0

There are three principal actors who Raj Rajaratnam (RR) alleges as individuals who perjured themselves, lied in court, changed testimony for personal gain, falsely incriminated others or behaved with gross arrogance. (There were also allegedly ‘lesser’ criminal perjurers; Roomy Khan, Rajiv Goel, Adam Smith etc). I am sure this lot are not the worst violators of justice in the American establishment. Something interesting is that they are named and their alleged crimes explicitly and extensively documented by RR but none has sued RR for criminal libel! This I find fascinating for its comparison with Victor Ivan’s book The Queen of Deceit which extensively and explicitly documents Chandrika’s alleged financial corruption and abuses of power from the mid-1990s onward. In particular Ivan covers the private power plant and Water’s Edge scandals. Chandrika never sued Ivan, an obvious admission of guilt. Ivan was politically very close to Chandrika during her rise to power in the early 1990s. See Wikipedia for details of her alleged gross misbehaviour.

The big three named by RR alleging abuse of office (Preet Bahara, Anil Kumar and FBI Special Agent B.J. Kang) nor any of the others have taken RR to court though the evidence needed for malicious slander charges is copious and explicitly on offer. The conclusion that I draw from this is that RR’s allegations must be mostly true. Photos of Bahara are easy to find and Anil Kumar’s mug can be located on the web with difficulty because he tries to hide it. Both photos are provided here; I have not been able to download a still photo of FBI Agent Kang but a video is available on YouTube.

RR’s indictments against the American justice system

a) The system is frequently used by ambitious or corrupt officials for personal gain.

b) The Grand Jury system is unfairly loaded against the accused.

c) Plea Bargaining is a routinised procedure for subverting justice.

d) Congressional oversight is inadequate and Congressmen/women indulge in insider trading.

e) Political interference with the Judiciary is infrequent and confined to the lower courts.

I will summarise RR’s arguments but in the interests of brevity I refrain from saying “as RR says” again and again. The reader would be justified in assuming that in my view his arguments in so far as they pertain to the political aspects of the justice system are mostly correct. I need to add that though I am not a lawyer I come from a family chock full of lawyers on both sides.

Abuse of the American justice system by ambitious officials

RR’s book is a personal indictment of many officials in the US justice system. It is good reading and the accusations are robust. The failure of any one of the explicitly accused to prosecute is telling.

US Grand Jury (GJ) System

GJ is a process in which only the prosecution presents its case, the accused has no right to testify but a prosecutor may extend an invitation to a defendant to testify if he waives his right to counsel. Defence attorneys are not permitted to be present at GJ proceedings. GJ can consider evidence obtained illegally, improperly, or in violation of the law; its proceedings are secret, so no one knows what went on.

Plea Bargaining (PB) in the US

Prosecutors usually offer a plea deal so that the accused can duck trial and a lengthier sentence. Petty felons, frightened by threats of harsh treatment, agree to falsely finger others so that prosecutors can have other high-profile targets to go after. It is no surprise that 97% of criminal cases in the US end up in plea bargains since most accused fear harsh treatment or false allegations. This is a system that feeds on itself and gives prosecutors an expanding case load to feast upon. There have been cases where felons accepted false plea bargains and perjured themselves to finger and convict innocent persons of murder. To be fair laws have been enacted in an attempt to limit the threats to democratic rights posed by abuse of this system but when the abuser of the system is a public prosecutor in effect the abuser becomes the all-powerful US Government itself. The other aspect is media frenzy as prosecutors frequently hold highly publicised press conference for their own aggrandisement.

When felons plead guilty, they implicitly agree to be sentenced. Prosecutors agree, as part of a plea not to recommend an enhanced sentence such as additional time in prison. Plea bargaining is a dilemma for defence attorneys too; they must choose between seeking a good deal for their clients and maintaining their relationship with prosecutors for the sake of other benefits. Plea Bargaining is conviction without trial, a feeding ground for ambitious prosecutors and a dilemma for defence lawyers.

Improper role of Congressmen/women

Blatant insider-trading improprieties by members of Congress were revealed in a popular TV show 60 Minutes+. The Washington Post also revealed this impropriety in June 2012 and claimed that 34 members of Congress (Democrats and Republicans) rapidly modified their investment portfolios after phone calls and meetings with then Treasury Secretary Hank Paulson, his deputy and current Secretary Timothy Geithner and Fed Chairman Ben Bernanke. This is very incorrect use of insider information.

Attempts to influence the Judiciary in the US

To the best of my knowledge there have been no recent reports of presidents or members of the Cabinet attempting to influence the judgements of the higher judiciary. At lower levels, judges may not be clean. To go by RR’s narrative Judge Richard Howell who tried his case is not someone American justice can be proud of. William Barr, Trump’s Attorney General (Minister of Justice) from February 2019 to December 2020 brought the Justice Department close to the White House making it dovetail with Trump’s wishes and demands. But when Trump was going out of control and attempting to invalidate the election results, Barr who had been fired just days earlier told journalists that Trump’s claims were “bullshit”. I conclude that Barr was cornered, not trustworthy.

I have expended a large number of words on the US Justice system since local readers I presume are familiar with the justice system and the judiciary at home. I will close with a comparative evaluation of the two countries. There are two aspects, the justice system or administration of justice per se and the judiciary or independence of the courts. On both counts Sri Lanka ranks below the US. Nevertheless, an appalling feature of the US legal system is that US District Attorneys and Federal Judges are not civil servants, they are political appointees. Upon the inauguration of a president every one of them is expected to resign giving the new president an opportunity to make fresh appointments.

I have described in brief the shortcomings or perversions of justice that the US Grand Jury system and Plea Bargaining give rise to. However, the degree of political interference in Sri Lanka is flagrant. The Attorney General is a slave of political powers and presidents. People are indicted and others exempted depending on the whims of the political establishment. Murders released and other murders who slit children’s throats pardoned and rearrested depending on the winds of political benefit. The administration of justice in Lanka is more politically perverse than in the US.

Manipulation and interference of judicial independence is not a novelty in Sri Lanka. I do not know of attempts by presidents, cabinet or influence peddlers acting on behalf of these powers attempting to influence the verdicts of the higher judiciary in the US. It is not a secret that the judiciary in Sri Lanka has been intimidated by presidents or their influence peddlers; for example, JR, Chandrika, Mahinda and Gota – to the best of my knowledge. Victor Ivan pleads that Ranil is not to blame Batalanda; but why this whitewash by an influential high-profile leftist? Is it possible that a powerful minister was not aware of torture chambers right inside his own electorate? Chandrika was worse, she exploited the legendary lechery of a certain Judge Silva to serve her own political ends. The assertiveness of judges after Gotha was driven out is refreshing, but isn’t it also tell-tale? Considered overall my view is that on both counts, administration of justice and judicial independence, Lanka trails behind the US.

Rajaratnam’s Uneven Justice is an enjoyable book for the author’s personal story and the story of prosecution of his company Galleon. It fleshes out illegal wiretaps, reckless disregard for the truth, concealing witness who could damage the prosecution’s case and other unique aspects of the US justice system. Plea bargaining is the worst perversions of the system. Try to get hold of a copy of the book, it’s a good read. I have omitted these personal storylines here because my focus is on the political dimension. 

The backdrop to the RR saga is the 2008-9 financial crash which destroyed about 7 trillion dollars – families lost homes unable to pay mortgages, personal savings were wiped out and there was a marked increase in poverty. No financier, banker, chief executive, company president or Wall Street highflyer was brought to trial. When compensation had to be paid it was shareholder money that was sacrificed. The biggest, allegedly most crooked companies (Finance Capitalists) AIG, Goldman Sachs, Lehman Brothers, JP Morgan, Bank of America and Morgan Stanley were declared “too big to fail” and thus protected by Obama at the cost of the ordinary American. HSBC which was up to its neck in money laundering and shifting swathes of drug money got away with a rap on the knuckles. Finance Capital (FC) is a power designed to shield the filthy rich at the cost of the middle and working classes. RR’s tiny hedge fund Galleon took a hit but FC is too big a creature to adequately discuss in this column today.

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Latest comments

  • 4
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    See this video starting at 49:30 to see how Judge Richard Howell hem and hog about RR’s sentencing.

    https://www.youtube.com/watch?v=1szayJV505M

    • 0
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      Thanks, Berners Lee.
      .
      I saw just about 5 minutes of this and I realise what an exceotionally good documentary that is.
      .
      I must try to see all of it, on a subject that I know next to nothing.
      .
      Panini Edirisinhe

  • 8
    2

    “Chandrika never sued Ivan, an obvious admission of guilt.”
    Certainly not.
    Often litigation causes more harm to public figures.
    Does the writer think that people should rush to court to prove innocence against every bit of slander that the media indulge in?

    • 5
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      Dead right. U are spot on. Very same VI stayed having done nothing against MR because Basil funded him using stolen money / that Chaura Rajina book was funded by Basil et al. 🤔🤔🤔🤔😐🤔😐

  • 7
    2

    Dr.KD, SJ,

    Leaving RR’s book aside, with only a few days left for 6 months since the start of the Russia-Ukraine, how have your predictions turned out? I asserted from the beginning Russia would face a far worse quagmire than it did in its earlier Afghanistan adventure. And just as I said, Russia has lost more men and military hardware in Ukraine in 6 months than it did in Afghanistan in 10+ years.

    • 7
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      I rarely predict.
      You, the great soothsayer have missed the key point that it is America’s proxy war.
      As for the analogy with Afghanistan, check out who is suffering most from the economic fall out.
      It is not easy being an intellectual and a cheerleader.

  • 6
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    SJ:

    Putin and the Russians were fully aware that the aggression against Ukraine would bring in the West as a proxy; after all, they said the fear of NATO expansion was their (fake) rationale for the invasion. I didn’t miss it.

    And by being willing to commit war crimes and genocide in Bucha and elsewhere, Putin has shown his true colors; now he and Russia have to pay the price. The Russians have just done a false flag operation by killing their own in a car bomb: the daughter of the nutty Alexander Dugin, aka Putin’s Rasputin, in order to use that as another excuse to strike Ukraine.

    • 3
      3

      Agnos
      You start history at a point that suits you.
      There is more to it than you will like to admit.
      I think that I have said enough, and let as see how things unravel.
      Reasoning with a cheerleader is no fun.

  • 7
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    KD, lets be fair. Living more than 20 years or so in the U.S and knowing RR (minimal acquaintance) 1) Racial profiling among policing is well known but thanks to BLM, some corrective steps are now being taken 2) But among judiciary, majority are good and as always few bad apples 3) Preet Bharara heavily prosecuted four out of five Italian Mafia family (severe crimes) and nearly hundreds of Wall Street executives (not just RR) for insider trading. Insider trading as such is serious because of the mistrust and instability, it causes among financial institutions and market in general. RR is NOT denying of his involvement in insider trading, but feels he was racially profiled, which is not valid. Bernie Madoff, few law makers and recently Trump’s personal accountant were prosecuted for financial crimes. 4) this discussion about RR is only because he is one of us and first high profile to be sentenced. 5) readers should read about former NY attorney generals, Eliot Spitzer, who was the first to go after Wall Street executives, was later prosecuted for different crime, Rudy Giuliani is now facing charges related to Trump, and Preet Bharara him self was fired by Trump for not cooperating.

  • 4
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    6) We in medical field may obtain information on a cancer drug in pipeline, now approved by FDA, for clinical use. Based on this information, less than 50 K investment in stocks, can return almost half a million, which is considered a serious crime. Using power and position to get inside information to personally profit is absolutely wrong. 7) It’s about right and wrong and not “every one did, so did I” .

    • 3
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      RR is secondary, but none other than Mahinda Rajapaksa (MR), the godfather of Sri Lankan mafia networks, is prominent when it comes to crime and hyper-crime in Sri Lanka.

      You may have heard that the whole world is revealing that his brother Gotabhaya (former president of Sri Lanka) fled the country and that the struggle youth chased him away, but MR still does not have the courage to mislead the media by saying that it is only for medicine. check-up”: Can you imagine the level of fraud?

      Why does it seem that no author has the guts to bring up MR’s ongoing mass crimes in Sri Lanka?

      If someone has the guts to burst the bubble on this, things will turn out better for our looted paradise. Our men and women just beat around the bush. They should start attacking the Mlechcha media directly for the Sri Lankan mess.

      • 0
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        Apologies for typos.
        .
        You may have heard the whole world reveal that his brother Gotabhaya (former president of Sri Lanka) fled the country, youth struggle chased him away. to our supprise, MR himself spoke to the press a few days ago and said something totally different defending his brother’s flee. According to him, Gota left the country for medical treatment.” Look, MR Who do we think we are? Checking”: Can you imagine the extent of the fraud? Indian and foreign press makers made it very clear that the Thai government agreed with him before he was in the country for 90 days. It strongly warned him not to engage in any kind of activity that would threaten the Thai government or their country. Nor is he given any kind of permission to do any political activities. It was further explained that Thailand allowed it because other countries refused him any form of asylum.

        • 0
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          Apologies.
          .
          Who does he (MR) think we are… ultra stupid people ?

  • 5
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    Part I of I
    Prof. David,
    Thanks. I broadly agree with you, but there are two additional avenues for completeness:
    1. Cost of suing/being sued
    Challenging slanderous claims is expensive, but not to our ministers and crooked companies who thieve when they choose to sue you. To ordinary people, it is better to ignore slanders rather than go through the expense of a lawsuit. If you are known for integrity, it will not hurt your reputation to ignore a slanderous claim. Such ignoring is therefore not necessarily an admission of guilt.
    While at the Election Commission I have ignored many letters of demand which simply went away. A caution though: Having stolen or abused power, crooked people and organizations have deep pockets to sue the writer and make life difficult.
    One of my considerations in exposing is if I have enough evidence that suing me would make the trial embarrassing for them. Sri Lankan newspapers in my experience decline an article if I name someone because they do not want the hassle of going to court. The Sunday Leader was bold that way and gave me the freedom to name people and stuck by me in court a few times.
    See Part II

  • 4
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    Part II of II
    I truly miss Lasantha Wickrematunge who stood with me when Bishop Kenneth Fernando and Douglas Devananda threatened lawsuits for separate articles and then slunk away when I refused to apologize. The trial would have embarrassed them. Newspapers today through their cowardice protect the corrupt.
    2. Plea bargaining
    Here again litigation can be costly. My experience is that many judges (especially at the University Services Appeals Board in my experience) do not even read the written material and write some obviously wrong things.
    So a case is always a gamble. At that point those supporting the system would say that mistakes can be corrected by an appeal process. That can be terribly expensive. So when a plea bargain is offered (usually when you are accused of a crime and have engaged in a crime) you need to gamble: to spend on your legal expenses and may be get a reduced sentence or may be even get stringent sentence. So accepting a plea bargain can save a lot of legal expense and for saving the state their expense and time earn a reduced sentence being rid of a nail-biting years of litigation with huge bills, not knowing what the judgement would be.

    • 1
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      Dear Jeevan,
      .
      This was very true about your period in the Elections Commission, when the choices were very clear to all whom we considered honest and intelligent. You were busy doing hings all the time, and its good that you didn’t allow yourself to be bogged down in litigation.
      .
      There will always be contexts and other considerations to be taken into account when we tackle any issue. You have done very well in all this. It may seem that you only half-succeeded, but it is difficult to be sure. You were the first to bring to our notice the fact Gota was the most unsatisfactory major election candidate we have ever had. Without you, the GGH movement may not have succeeded.
      .
      History will judge? Sometimes much is just forgotten.

      • 4
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        “Without you, the GGH movement may not have succeeded.”
        PBUH.

    • 2
      2

      “My experience is that many judges (especially at the University Services Appeals Board in my experience) do not even read the written material and write some obviously wrong things.”
      *
      Deconstruction of this yields a simple truth: Someone lost an appeal.

  • 1
    0

    KD,
    “The Attorney General (AG) is a slave of political powers and presidents. People are indicted and others exempted depending on the whims of the political establishment”
    You have said a lot on SL Judiciary – perhaps reserved a Mouthful??!!
    Add to that you may add, Chief Justices (CJ) too!! Let alone individual Justices – after all Humans, by and large, frailty being to be supine in accommodating the wishes of those exalted personae?!
    I wish to add that that outcome becomes far worse, when the incumbent of that office is from the Minority community – or better to state, if they don’t belong to Majority Community???
    Simply they are more pliable than those from the majority community, to be labelled patronising terrorism or unpatriotic than the majority community??!!

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