By Alan Keenan and K. Mudiyanse

Sri Lanka, long-plagued by political violence and near-complete impunity for crimes by the State and pro-State forces, now faces a new assault on justice and the rule of law. There is a systematic attempt to rewrite the history to make politically-connected criminal suspects into victims, and investigators and legal reformers into criminals.

The unprecedented efforts of the government of Gotabaya Rajapaksa – most strikingly through his presidential commission of enquiry into so-called ‘political victimization’ – threatens to do more than just eliminate the possibility of justice in the specific cases it is considering. These specific cases relate to that of political allies of the State, and in instances where Rajapaksa family members are being rescued from prosecution. In doing so, it risks distorting judicial and police procedures, by which the very existence of a meaningful justice system is cast into doubt.

International human rights watchdogs have understandably expressed concerns about the return of the Rajapaksa family to power, given the grave crimes committed during the years of Mahinda Rajapaksa’s presidency from 2005–15. A year into the presidency of his brother, Gotabaya, however, the signs suggest that the threat to dissenting voices and political opponents will, at least at first, be through more subtle means than the murders, assaults and enforced disappearances used to silence critics during their first regime. Legal attacks and legalized lies – not bodies in the street – seem likely to be the preferred means of destroying their opponents. The world needs to be alert to this and to find ways to respond.

Entrenched impunity

From the first of its multiple post-independence insurrections in 1971 through to the end of its horrific 26-year war with the separatist Liberation Tigers of Tamil Eelam (LTTE), Sri Lanka suffered the gravest of crimes and political violence by State and non-State forces alike. Scores of political leaders were assassinated, hundreds of suicide bombings and massacres, tens of thousands of enforced disappearances and tens of thousands of civilians were killed in the final few months of fighting the Tamil Tigers.

While some LTTE members were prosecuted for terrorist attacks over the years of their failed separatist struggle, just a handful of cases involving police and military and pro-government paramilitary forces have ever been successfully prosecuted.

There were promises – and some limited hopes – that this would change when a new government came to power in January 2015, following the surprise defeat of president Mahinda Rajapaksa by his former ally Maithripala Sirisena.  The government Sirisena formed with the backing of his prime minister Ranil Wickremesinghe – the leader of Sirisena’s long-time opponents, the United National Party (UNP) – pledged to its own citizens and to the United Nations that it would rebuild the independence of the police and judiciary and end institutionalised impunity.

While no progress was made on the most controversial proposal – a criminal tribunal with international assistance to prosecute crimes committed in the final years of the civil war – a whole host of investigations into other high-profile political crimes, long-stalled in courts or buried in police files, began to move.

Released from its former political restrictions, the Criminal Investigation Department (CID), along with other specialized units of the police, vigorously pursued scores of high-profile cases of murder, abduction, disappearances and large-scale fraud committed during Mahinda Rajapaksa’s presidency.

Strong resistance from the military, whose intelligence units were implicated in numerous of the so-called “emblematic cases”, skilful legal manoeuvres by the Rajapaksas, and various alleged behind-the-scenes political deals ultimately left the most important cases unfinished by the time Gotabaya Rajapaksa was elected as president in November 2019.

Facing a major challenge from multiple high-profile cases implicating the family, their allies and police and military units under their commands, the new administration chose the bold path of directly challenging the reality of powerful and widely publicized evidence.  The government launched a campaign to discredit the evidence first by carefully cultivating public opinion through accusations of nationalist Buddhist monks and family-backed media outlets, who accused key investigators of being foreign collaborators, in the pay of NGOs.

Then on January 22, 2020, President Gotabaya Rajapaksa appointed a quasi-judicial body, Commission of Inquiry, to probe alleged political victimization of members of the armed forces, police and public service between 2015 and 2019. The Commission has been chaired by a retired judge of the Supreme Court, whose previous conduct was examined by the apex court itself, and found worthy of disciplinary action. The other two members are another retired judge and a retired inspector general of police who served as an advisor to former President Mahinda Rajapaksa, who is now prime minister under his brother, President Gotabaya Rajapaksa.

Several international watchdog groups, including Amnesty International and Human Rights Watch, have drawn the attention of the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence to the adverse impact of the Commission on judicial proceedings against those charged with “serious human rights violations”.

Procedural interference to undermine criminal cases

The Commission began enquiring into several matters that were currently before the judiciary, including several cases where criminal proceedings had been instituted by the attorney general against accused murderers and money launderers. It provoked a clash between the Commission on the one hand, and the attorney general and judges hearing these cases on the other. In one case, the commission sought to stop an ongoing criminal trial from carrying out proceedings.

When the Commission took up the matter of several navy officers, including a former navy commander, indicted for abduction and ransom, and thereafter, murdering 11 Tamil and Muslim youth, the commission took the unprecedented step of ordering the attorney general to halt criminal proceedings against the accused.

The attorney general refused the request, arguing that the Commission has no statutory power to order a halt on the criminal proceedings. In a separate criminal trial, the Commission withheld documentary evidence from the trial court and threatened to take action against prosecutors if they sought to continue with the trial.

The Commission has made similar procedural invasions on behalf of military intelligence officers accused in ongoing judicial proceedings, involving assaults, abductions and murders of journalists between 2008 and 2010. These also include widely publicised assault on Keith Noyahr, murder of Lasantha Wickrematunge, assault on Upali Tennakoon and abduction and possible murder of Prageeth Eknaligoda.

The Commission has also been widely criticized for entertaining a complaint from a businessman who faces criminal charges connected to gun-running in the high seas, outside of its mandate. It has regularly accepted as fact allegations made by accused persons in criminal cases and their family members without allowing the impugned law enforcement officers a chance to offer their own evidence or to cross-examine witnesses. It has also made political comments undermining independent oversight commissions without any corroborating evidence.

The Commission has also intervened on behalf of a senior police officer who faces criminal charges for harbouring a fugitive who was later convicted of the rape and murder of a Tamil schoolgirl, ordering that the police officer, against whom a trial is pending, be reinstated in his role in the police force.

One of the Commissioners, Chandra Fernando, has a conflict of interest in the investigation of one of the key respondents in this matter. Assistant superintendent of police, B.S. Tissera, who led the investigation into the rape, murder and fugitive harbouring cases, was reportedly pressured to drop a murder investigation by Fernando when the latter was head of the police. Tissera sought Fernando’s recusal on this basis, but this request was ignored by the Commission despite judicial precedent that Commissioners cannot sit if there exists a conflict of interest. The Commission unilaterally concluded proceedings on October 29, 2020 without providing those whose actions were impugned a chance to respond to the uncorroborated allegations made against them by accused, and in some cases, convicted persons in criminal proceedings.

Criminalizing the criminal investigators

The Commissioners and its hand-selected witnesses have taken aim at a few police officers in Sri Lanka with specialised training in criminal investigations.  The highest-ranking officer targeted is former Criminal Investigation Department (CID) director Shani Abeysekara, who oversaw some two dozen key cases, and is especially unpopular within the police for his role in bringing several senior police officers to justice in connection with the murders.

In one high-profile case, a deputy inspector general of police convicted of murder for running a contract killer squad inside the police service, encouraged by the work of the Commission, has appealed his conviction before the Supreme Court. After key witnesses reversed their sworn testimony, the government rushed to arrest and imprison Abeysekera and two other detectives who apprehended the killer squad. The police have been credibly accused of coercing false testimony to exonerate the convicted killers and to frame Abeysekara and his fellow officers.

Another officer falsely accused by the government’s disinformation campaign is CID inspector Nishantha Silva, who fled to Switzerland with his family after Rajapaksa came to power, fearing reprisals for his central role investigating many of the emblematic cases the commission is considering. Following his departure, a group of men illegally detained a visa officer of the Swiss embassy in Colombo and interrogated her for information about Sri Lankans who helped Silva flee the country. When the embassy complained to the police, the visa officer was arrested and faces criminal charges for making a false complaint, although her complaint was never investigated.

The Commission and its witnesses have also gone after only two prosecutors in the attorney general’s department with specialized experience in anti-corruption trials and combating money-laundering, deputy solicitor general Thusith Mudalige and senior state counsel Janaka Bandara Tennakoon. It has also targeted independent legal scholars in the good governance and anti-corruption sector, such as president’s counsel and former executive director of Transparency International in Sri Lanka, J.C. Weliamuna, who had been invited by the government to assist anti-corruption drive of the country.

Mudalige, who successfully prosecuted Lalith Weeratunga, former secretary to then president Mahinda Rajapaska and presently advisor to Gotabaya Rajapaksa, for money laundering, is now targeted for receiving legitimate payments for overseeing legal work at the previous government’s Anti-corruption Secretariat.

Bandara is targeted for trying to prevent the Commission from interfering with the ongoing high court trials. None of these witnesses have been given an opportunity, within the legal framework, to respond to the allegations against them, nor has the Commission sought to use its statutory powers to independently corroborate these allegations, all of which have been based on hearsay and innuendo rather than documentary or first-hand accounts.

On November 6, 2020, five opposition parliamentarians filed a complaint with the Commission to investigate allegations of bribery or corruption (CIABOC), alleging that the proceedings of the “political victimization” Commission were corrupt.

The next day the Commission retaliated, accusing them of contempt and summoning them before the police to reveal details about their complaint, which should be privileged under the laws governing CIABOC complaints.

The deeper threat

By seeking to subvert and delegitimize ongoing judicial proceedings, the commission on political victimization is allowing those charged with crimes ranging from embezzling state funds to murder an opportunity to impugn those who investigated their alleged crimes outside of the criminal justice system. This has already had a chilling effect on police officers presented with investigating serious crimes in the future. The attacks on prosecutors and independent legal experts are designed to cripple efforts to build capacity in the law enforcement process or enforce accountability of grave crimes and serious financial offences.

The commission – through its widely-publicized proceedings and pending report – is a key prong in the government’s systematic dismantling of the criminal justice process against politically powerful persons accused of corruption, money laundering and serious violent crimes.

In March, the president pardoned a war criminal whose murder conviction for killing civilians in cold blood was unanimously upheld by a full bench of the Supreme Court. The government is circulating a petition among legislators calling for the pardon of another convicted murder with ties to narcotics trafficking, who has a close relationship with the president. A judge who is currently standing trial for corruption has been appointed the president of the Court of Appeal. He has declined to recuse himself from hearing cases argued by the prosecutor who indicted him, and has issued orders stopping the arrest and criminal trial of accused mass murderers.

Through a sequence of presidential pardons, arbitrary arrests of some of Sri Lanka’s most able and courageous police officers, interference in criminal trials and intimidation of prosecutors, the government is systematically dismantling the justice system’s capacity to investigate and prosecute serious crimes.

As these dangerous moves were already underway, the 20^th Amendment to the Constitution – approved by the Parliament on October 22– has formally stripped all independent oversight of the police and civil service and given the president direct control over the police, Attorney General’s Department and the judiciary.

In a damning indictment of the draft amendment, Sri Lanka’s Bar Association – not known for taking strong political stands –  warned that its passage would increase the risk of violent insurrection: “If the public do not have access to remedy a grievance against the unlawful exercise of powers by all powerful President,” the lawyer’s group warned, “the only remedy will be to take arms against the State.”

The particular clause in the Amendment that the Bar Association was criticizing was ultimately changed to allow limited legal challenges to presidential decisions, yet the warning remains all too valid: the major changes wrought by the 20th Amendment and the presidential commission’s frontal assault on factual truth and vindictive rewriting of history to punish those who dared seek justice and protect the wrong-doers. Together, they put Sri Lanka on a dangerous path of authoritarian and family rule.

No citizen will be secure in her rights, and no safety valves will be in place should popular discontent begin to build. Given Sri Lanka’s modern history of brutal insurrections and state terror in response, all those concerned with the country’s stability and prosperity should be very worried indeed.

-Alan Keenan is a senior consultant on Sri Lanka for the International Crisis Group and K. Mudiyanse is a pseudonym for a Sri Lankan researcher and rights activist. This article was originally featured on thewire.in