By Tassie Seneviratne –
Failure in Prevention was the tag that marked the thoughts of all over the Easter Sunday Bombings 2019. That peal still rings sharp even more so with the release of the Presidential Commission of Inquiry Report (PCI -1) and is now in the public domain. The issues in this are many. But failure in prevention takes on many forms, from callous disregard to benign neglect. PCI -1 has even found the failure in prevention as criminal, but does not specify the offence in penal terms. And the reasons for the failure in prevention, even within the PCI -1 report, are varied. They are not of one accord.
The purpose of this article is therefore to offer some comments from a law and order perspective. The remarks are very brief due to other constraints.
The malfunction of the Security Council (SC) has been identified in the PCI report as the principal reason for failure in prevention, in this instance. This is a grave misconception on the part of the PCI. The misapprehension occurs notwithstanding the fact that eminent members with competence comprised the PCI.
The SC and any breakdown of the SC are irrelevant to crime prevention. Crime prevention is the total, entire and legal responsibility of the IGP, not the SC. The SC is only an administrative body to deal with related politics and policy. The SC has no executive authority or responsibility. The idea in the PCI -1 that the breakdown of the SC was the reason for failure of crime prevention is a thought gravely misconceived. It follows even further, perhaps consequentially, that this delusion with the PCI similarly affected the thinking of the IGP and has permeated the judgment of many others.
Secondly, the ensuing recommendation by the PCI that HE the President, the IGP, and a range of other officers all be subject to and brought together for criminal proceedings and action, is a proposal totally misconceived. Criminal liability arises in relation to rights, specifically infringement of rights by executive and administrative action. The IGP and officers under him take executive action which can entail infringement of rights. Others mentioned act only in a non-executive advisory capacity which action is neither administrative nor executive. These others acting in capacities as coordinators, consultants, advisors etc. cannot be held for ‘criminal liability’, since they have no actus reus or mens rea in their action.
Thirdly, the law relating to such exercise, such executive or administrative action, is the criminal law. Infringement of rights occurs when the action is not covered by the criminal law. This law does not apply to the President and the many others by the nature of their action. Combining all these categories together to impose criminal liability through criminal proceedings is incorrect.
Nonetheless, the PCI was acting only in the nature of a disciplinary inquiry. A disciplinary inquiry has its own rules and limited purpose. Hence, the PCI was barely different from the Postal and Railway security inquires which are only an administrative exercise. Criminal consequences cannot follow in their wake. Failure in prevention in this situation cannot be determined by a form of disciplinary inquiry. The need for prevention did not come in April 2019 by the divine, but came by design. The critical nature of that Easter week in April was then not meteoric, from out of the blues. Those circumstances were coming and were long in coming. A disciplinary inquiry cannot figure that out. The PCI had no idea that the problem was coming over some time. The vision of the PCI and the Terms of Reference (TOR) for the PCI were blurred over the whole problem as it sat over the question.
Only a criminal investigation could have worked out that issue. Even by way of criminal investigation, it is clear that a whole area of investigation did not engage the concern of the PCI. Criminal investigation would have been closely focused on crime prevention per se. From that angle crime prevention had first to deal with crime intelligence, followed by crime investigation, followed by prosecution and conviction. Only then could crime prevention have been effectively undertaken. All this action is clearly within the legal duty of the Police. The SC has little competence in this function of the Police.
And even by way of criminal investigation there still remains much to be done. A whole range of incidents have been mentioned in the course of the PCI examination. These have a bearing on the matter of the PCI (inquiry), related to each other and pointing in the direction of a prior conspiracy. Preparation, aiding and abetment, common intent, unlawful assembly, racial rioting, and religious misdemeanor, are some of the diverse facets of the train of events which took place long before the fateful Easter week 2019. These bore some evidence, admittedly of a loose nature of relevance, which transpired at the PCI inquiry, relevant to its TOR. In short there was something of a ‘conspiracy’ which presaged the Easter bombing incidents. But the significance of these preordering incidents to the work of the PCI (inquiry) is lost to and not evident in their PCI -1 report.
Whether by reason of the superficial nature of the disciplinary inquiry or whether by reason of a grave misapprehension of the relevance of a criminal investigation, PCI (inquiry) is inadequate. The resulting focus of the PCI on crime prevention is narrow. The recommendations of the PCI are thereby not helpful to answer the question how to prevent a recurrence. Criminal proceedings and imposition of criminal liability on all those mentioned in the PCI are none but born of a grim delusion for the reasons stated above.
The need now, after all these PCI sessions, being to prevent recurrence of such incidents, there is much to do, and much more to have done long before the information was received just during that fateful week in April 2019. The need is to ensure that matters as the Easter bombings do not come from the blues. Failure in prevention has been the simple result of failure of intelligence, of investigation, and of prosecution and conviction, together all of which is none other than failure of law and order. Failure in this respect was coming from a long time before. That aspect was lost to the PCI Members. The SC had little to do with failure in prevention of the bombings; that sanction for the failure was to be based on criminal investigation; any other inquiry served little purpose; and prevention of a recurrence required yet another approach.
“Parturiunt montes, nascetur ridiculus mus”. – Horace. Mountains labored to give birth to a ridiculous mouse), is an apt appraisal of the PCI report.
Had the intelligence dossier in fact been duly built up over these years, prevention would not have failed, and the Easter bombings averted.
*The writer is a Retired Senior Superintendent of Police. He can be contacted at firstname.lastname@example.org