By Rajan Philips –
The Supreme Court ruling on the twelve Fundamental Rights applications filed by a large number of Petitioners against an equally large number of Respondents, “invoking just and equitable remedies” for loss of life and injuries caused by April 2019 East Sunday attacks, has much broader ramifications beyond the stunning order that five individual Respondents pay Rs 310 million as compensation to the victims. A third of that amount, Rs. 100 million, has been imposed on Maithripala Sirisena, the former President and Minister of Defence. The balance Rs. 210 million is distributed among former IGP Pujith Jayasundara (Rs 75M), current DIG, Nilantha Jayawardene (Rs 75M), former Secretary to the Ministry of Defence Hemasiri Fernando (Rs 50M), and the Chief of National Intelligence Sisira Mendis (Rs. 10M).
The State is ordered pay one million rupees in addition to the amount of compensation the government had earlier voluntarily decided to pay, as fair compensation for the pain, agony, distress, suffering and destruction undergone by the victims and families as a result of the contraventions by the Respondents” identified by the Court. The Court noted the submission made by the Archbishop of Colombo that most victims have not been paid their compensations either partially or fully, and ordered that all state compensation must be paid in full within next three months. As for the newly imposed individual payments, the Court has called for a progress report on the status of payments to be submitted within six months.
The Court also singled out Nilantha Jayawardena, former SIS Director and the current DIG for disciplinary action for his lapses and failures leading up to the Easter Sunday attacks. Just before the Court ruling there were reports that the Ranil-Rajapaksa government was going to appoint Nilantha Jayawardena as the next IGP despite howls of public protest. The ruling effectively puts an end to Mr. Jayawardena becoming IGP. In the wake of the new ruling, one would hope that not only the appointment of the IGP but also the appointments to be any and all ‘high posts’ would henceforth be made strictly on merit and experience, eschewing forever what the Court has pointedly called “hostile exclusions and selective inclusions.”
The pith of the Petitioner’s case is that inaction by the Respondents led to the Easter Sunday attacks. The crux of the Court ruling is inaction in spite of power. In fact, too much power in and total inaction by one person – Maithripala Sirisena. The missing elephant is the alleged ‘mastermind’ behind the attacks. Looking for the mastermind is not the business of the Court. Nor was it necessary for the Petitioners to ground their case on a mastermind.
However, the mastermind question is not going to go away because it defies commonsense that five individuals would have separately and without co-ordination decided to do nothing, while knowing what was going on and after receiving warnings about what was going to happen. Hence, the not so secret hypothesis that those in the know – knew what was going to happen and were going to allow it to happen for sinister political advantages, while expecting that that whatever that was going to happen was going to be retail in scope and not a wholesale disaster. Like what an exasperated UNP Minister said in the days after July-August 1983: ‘instead of smashing a few teeth, our fellows have pulled out whole jaws!’
So, the mastermind question and hypotheses will go on, and indirectly as a result of the Court ruling Police cannot easily go after people bandying the mastermind question. Put another way, it would be virtually impossible for the Police to haul men of the Christian cloth from their pulpits to the Fourth Floor and shut them up from talking about the mastermind.
Inaction in spite of Power
Inaction in spite of power is what Maithripala Sirisena stands censured and punished for. The former President exemplifies the gospel dictum that “to whom much is given, of him shall be much required” (Luke 12:48). Rather than being given too much, Sirisena gave himself too much as President and Minister of Defence. The Court recounts the expansion of Sirisena’s powers through gazette notifications from 2015 culminating in Gazette No. 2103/33 issued on 28th December 2018. This was two months after creating an unnecessary constitutional crisis by firing his Prime Minister in October 2018, and four months before the Easter Sunday bombings in April 2019. The Court details all the powers that Sirisena assigned himself in the December 2018 gazette, lists his failures to do anything with those powers, and hangs it around his neck like a millstone to sink him.
Sirisena’s omissions were compounded by those of the police and security offices surrounding him. The most “flagrant” of those was the failure of the IGP and his men in Colombo to notify their men in the provinces. Especially, the DIG for Eastern Province. Perhaps the Police Head Quarters were implementing 13A abolition! And tragically ironically too, since they were also ignoring the warnings that happened to come from India! These failures again give credence to the mastermind theory. For, it is impossible to explain this collective inaction in spite of information on stupidity, incompetence or plain negligence. People are likely to keep looking at least for the hidden hand co-ordinating inaction, if not a mastermind controlling politics.
The Court’s pronouncement on the question of liability extending to the cabinet of ministers and the then Prime Minister is both revealing and could be consequential. A number of Petitioners had pled for broader liability to be imposed on the cabinet of ministers. Their pleas were based on the responsibility of the Government of Sri Lanka to prevent ‘terrorist bombings’ under the 1999 Suppression of Terrorism Bombings Act, and the (old) interpretation of ‘government’ to the ‘cabinet of ministers. Interestingly, the Court held that:
“Though the Constitution does not define the term ‘government”, the interpretation offered by the Interpretation Ordinance does not serve as a useful guide, as it deals with a cabinet of a bygone era and such interpretation will be inappropriate in the context when the executive power of the people, including the defence of Sri Lanka is to be exercised by the President.”
Although the Court’s above take on the matter is for the narrow purpose of determining liability, there are broader implications. In any event, the limiting of liability to the President and the Minister of Defence, both one and the same, was made justifiable by Maithripala Sirisena himself, by virtue of his assignment of all the defence and security powers to himself and by his spiteful move to keep the Prime Minister and other Ministers out of security and intelligence deliberations.
The then Prime Minister and current President Ranil Wickremesinghe has been spared of legal liabilities on account of Sirisena’s petty exclusion and Mr. Wickremesinghe’s incumbent status. Whether he will be so spared after he ceases to be President is another matter. But there is no mistaking his moral and political accountability for the Easter Sunday attack, for there could be no excuse for the then Prime Minister to have kept silent when he was kept excluded by his President from security meetings.
Wickremesinghe’s silence was a cynical tit for Sirisena’s petty tat when the former could and should have shouted enough to bring the political roof down on his President. As far as the Easter Sunday victims and their Churches are concerned, there could be no difference between Sirisena’s seemingly co-ordinated inaction and Wickremesinghe’s cynical inaction. What has been tragically frustrating the victims and the Churches is the fact that while everyone in the echelons in power, both within and outside the government, seemed to know there was something cooking for the Easter Sunday, they chose to keep the eventual victims in the dark for sinister political advantages.
The New Norm
Lastly, the Court’s reasoning in laying down the general principles for determining accountability and compensation is impressively persuasive. The Court’s reasoning and its palpable enthusiasm for “constitutional torts in human rights law adjudications,” are likely to have consequences for Sri Lanka’s government, politics and society. Fundamentally, state functionaries become liable when their actions or inaction in the exercise of their powers and duties result in the denial or violation of when people’s fundamental rights.
This is becoming the norm in Sri Lanka and the Supreme Court is not with those who make the argument that human rights are a western whim that has no place in Sri Lanka’s age old civilization. On the contrary, the Courts asks rhetorically: “Do the Courts of Sri Lanka have to sit idly by when several jurisdictions abroad have embraced the concept of constitutional torts in human rights law adjudications?” The answer comes across loud and clear in the ruling.
Surveying the judicial landscape for guidance in determining accountability of state functionaries, and drawing on past decisions of Sri Lanka’s Supreme Court and rulings from other jurisdictions including India, the UK, Germany, South Africa and Canada, the Court poses the question and provides the answer:
“If a member of the public whom public service exists to serve suffers irreparable injury or loss though the culpable fault or reprehensible failure of that service to act as it should have, is it not consistent with ethical and, perhaps, democratic principle that the many, responsible for discharging that service in public trust, shall bear the cost of compensating the victim? This Court cannot leave that as a rhetorical question, and stand as mute bystanders, as we are confident that our own answer on the law and facts is as clear as a pikestaff.”
In determining State liability, the Court appropriately dismisses the “administrative practice” argument advanced on behalf of the government even though the government has already decided to voluntarily pay compensation to the victims. The ‘administrative practice’ reasoning is based on an ‘obiter’ in earlier (1978/1981) Supreme Court rulings in two fundamental rights cases alleging torture by police in one case, and by the army in the other. The reason here is that petitioners must prove an established ‘administrative practice’ to claim state liability. The Court rejected the government’s submission not only because it would be “preposterous and illogical” to suggest the requirement of administrative practice in a case involving omission and negligence, but also because the requirement itself “no longer holds good in this country.”
It is also pertinent to ask if there are implications of the Easter Sunday ruling, for those who made decisions in the Gotabaya Administration, whether on the economy or on security. it could be open season for litigations against them. And if the Canadian government sanctions were to infect other governments as well, there will be no place to hide for those hounded by justice. Specifically, what will be the fallout from the Supreme Court decision for those who made the decision to unilaterally terminate the Colombo LRT project that had been started based on a very favourable bilateral agreement with Japan for a very sensible project?
Suffice it to say, there is an Auditor General report dated 23 November 2022 (Special Audit Report on the Unilateral Termination of the Light Rail System by the Government of Sri Lanka). The Report is scathing in its censure of the government’s decision to unilaterally terminate “without formal, logical and justifiable grounds … a project proved to be environmentally, technically, economically and financially productive after incurring heavy costs on preliminary activities including feasibility studies conducted by foreign experts.” Will any action flow from it? We have to wait and see.