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.