Justice must not only be done but must manifestly appear to have been done.
by I. P. C. Mendis
( January 11, 2018, Colombo, Sri Lanka Guardian) Presidential Commissions have their advantages, disadvantages and uses, depending on the particular government in power and the different agendas. Whatever the kind of Commission – special or normal, it is generally time-consuming. The Treasury Bond Commission has taken 10 months. One would think it not too long considering the megabucks involvement, the intricate nature of the issues and the unanticipated further issues that emerged during its proceedings.
If the government was serious in getting to the bottom of the huge problem in the shortest possible time, holding a proper inquiry through a Presidential Commission, all it had to do was to take the short cut of appointing a Special Presidential Commission with penal powers in-as-much as the late Prime Minister, S.W.R.D. Bandaranaike did with the Thalgodapitiya Commission, where two or three of his Ministers were shown the door. The Yahapalana Government did not do that. The Treasury Bond Commission was appointed by President Sirisena when he was almost pressed against the wall and had to defend his own position against the mighty “Defenders of the Mahendran/Aloysius Faith”, and even the dogged agitation to re-appoint Arjuna Mahendran as Governor of CBSL after his initial term had expired. His appointment is reported to have been opposed by two Cabinet Ministers who won under the UNP ticket. Unfortunately for the Prime Minister, Ranil Wickremesinghe, he depended too much on “green-horns’ within the UNP to win his day. SLFP Minister Amaraweera, I believe, ran post-haste to the Bribery Commission with a dossier, followed by the JVP, and the country began to smell a rat.
Prime Minister RW had no alternative but to relent and Indrajith Coomaraswamy has brought in a breath of fresh air to the “near -tainted” Central Bank. An old and respected hand who years ago had been released by the CB to the Finance Ministry/Treasury, and later shone at the Commonwealth Secretariat in London, is reported to have been much coaxed into accepting the responsibility and he has accepted it in the best interests of the country; keeping the legacy of integrity and respect of his illustrious father the late “Roving Raju”, a virtual institution of the Treasury at the time. We wish him well to pull the country and the CB out of the mire.
“Quid Pro Quo”
The DEW Gunesekera “COPE” could not be taken up in Parliament in 2015 because President Sirisena dissolved Parliament and called a general election in August 2015. It looked almost a ‘quid pro quo’ to assuage the Prime Minister for not agreeing to his insistence on re-appointing Mahendran. Whether President Sirisena intentionally did it or not, it had the salutary effect for the PM and the UNP section, of finding momentary relief playing for time. Despite the growing resentment on the alleged scam, perhaps the President was lulled into a false sense of security and belief with the personal assurances given by the Prime Minister on Mahendran’s behalf. little realising that he too could be vicariously aligned with the “Defenders of the Mahendran/Aloysius Faith” who were all out to paint Mahendran and Aloysius of PTL brilliant white, bringing in its wake the popular refrain for three years now of the alleged corruption in the former Rajapaksa regime. Parliament was thus dissolved and a general election called in August 2015. The opportunity to discuss the DEW G. Report was lost and DEW Gunesekera lost his National list place in Parliament.
Whatever political differences one may have with the JVP, the country owes a debt of gratitude to the successor of DEW Gunasekera, Sunil Handunnetti, who took the Chair of the COPE and accomplished a most difficult task in the midst of immense opposition and tactics from the “foot-note” gang” of the UNP, not excluding bombastic empty rhetoric. He did not throw in the towel and the COPE Report became a good base for the Presidential Commission, and an eye-opener for the entire country.
One remembers how the Auditor-General was humiliated by various interested parties. We remember how Mano Ganeshan’s representative was virtually removed from the COPE and Sujeewa Senasinghe appointed in his place, to strengthen the defence of Mahendran and Aloysius, more so the Prime Minister. He went to the extent of writing a book. His numerous telephone calls to Aloysius, he defended with the argument that they were necessary to obtain information for his book. He did not elaborate whom he contacted to double check the story for its veracity, and how he decided to continue in COPE, without declaring the conflict of interests and whether such conduct was in consistent with good governance and principled conduct. He had already made up his mind to clear the perpetrators. But he is an honourable man, a good party disciple who declares publicly that he had not received any monetary gain. Together with him, there were some others who were reported to have received and originated calls.
Only Dayasiri Jayasekera came out with a plausible explanation for the two calls. It is unfortunate that the Presidential Commission, according to reports circulating, has not touched on this important aspect. It did arise at the last stages of the Commission’s term, before the belated final extension, but seeing the seriousness of the emerging situation, one would have thought the country would not have minded further extensions to compile a comprehensive report.
Dappula de Livera and Yasantha Kodagoda have done a tremendous job under trying circumstances no doubt, and they, left to themselves, would have assisted the Commission in a way that the whole truth would have been revealed if the time factor of the Commission was discounted; which would have benefited the country. What can a Commission do in the circumstances of finding itself not being certain of its period of office being extended? There appears to be a lapse here, intentional or unintentional.
The “Hero” Prime Minister
The Prime Minister, I believe, had declared his intention to give evidence and the Commission thought it fit to invite him. One would have thought that the A-G himself should have listed him as a key witness, particularly in a situation where Mahendran had declared that he was acting under the PM’s instructions. It was practically during the last few days of its term, with no inkling of an extension then that the PM appeared. As to why he was granted special consideration and privileges not available to other witnesses was not explained. They say the law is no respecter of persons. Whether even Bill Clinton was afforded special privileges in the investigation on the Lewnsky scandal is a question that has to be asked. Dappula de Livera and Yasantha Kodagoda were sidelined in the questioning and the Attorney-General himself did the honours to this special witness. To all intents and purposes an incisive cross-examination was conspicuous by its absence. Similarly, the cross-examination of Mallik Samarawickreme and Kabir Hashim appeared to be a “damp squib”. Witnesses RW, Mallik S. and Kabir H were all key witnesses who could have been intricately examined and important evidence extracted through well-planned examination. The excellent work that de Livera and Kodagoda did, after burning the midnight oil at great risk to themselves, were doused and dampened in the end as most people see it. The indecision about an extension of the term of office of the Commission played no mean part, in an indecent haste to complete the innings when the going was good for the country, but bad for the government and the perpetrators.
The Commission Report
The much, awaited Report was finally handed over to the President on 30th December 2017, and within four days the President gives a very short summary of the recommendations. According to the Sunday Island of 7th January 2018, different versions without embarrassing statements had been published elsewhere in an apparent cover-up bid. Obviously he or his officials could not have gone through 1257 pages and assimilated everything the Commission had said, and it appeared unfair that the Report had been made short-shrift of that way, without the people being made aware of the full contents. It is to be hoped that at least it will be presented to Parliament swiftly and printed.
Tarry a little Jew!
Sections of the Opposition and certain organisations are all agog demanding that the perpetrators are arraigned before the Halls of Justice swiftly. But as Portia in Shakespeare’s “Merchant of Venice” told Shylock- “Tarry a little Jew, the law hath yet another hold on you” – in my own humble way I would advise these agitational groups that they have missed a vital recommendation made in the Report, that the Central Bank of Sri Lanka should first conduct a forensic audit with regard to the alleged fraud and corrupt practices from 2008 and based on such findings legal steps should be taken. The mandate of the Commission was to inquire into the relevant activities from 1st February 2015 to 31st March 2016, and one could go with the recommendation if the forensic audit was confined primarily to the period of the mandate; but now it appears to have gone beyond the mandate and covered seven more years to the one year and two months the Commission has really investigated. In terms of the President’s statement, the Commission itself was mindful they had no such mandate, yet it is surprising how after reporting it had not done so, mixed up this period with the mandated period and made it a condition prior to instituting legal steps against the perpetrators concerned in its Report. How soon a meaningful forensic audit over a period of eight years and two months can be completed to satisfy legal requirements, is a guess one would leave to the intelligent reader to decide. The agitators can shout till the cows come home, but the perpetrators will be laughing all the way beyond 2020. Little wonder they are so confident. There could be absolutely no objection to probing the period from 2008 to 2015, but why wait till that forensic audit too is completed to take legal action on the current Report?. What a world! Justice delayed is Justice denied. It is a pity if after all this effort, this recommendation is permitted to stand in the way of a speedy solution to the matter which was under investigation and pave the way for a ” Great Escape”! It could happen only in Sri Lanka – Quite a theme for Sunil Perera and the Gypsies!
Justice must not only be done but must manifestly appear to have been done. Hence, with all due respect to the AG and his band of efficient officers, there appears to be a need for outside lawyers to lead the team of prosecutors, together with the AG’s Lawyers in prosecuting the perpetrators.. The precedent was created when George Chitty QC was brought in to prosecute in the Bandaranaike assassination case. The UNP government itself did not send the then AG Douglas Jansze, who successfully prosecuted the coup suspects of 1962 here to the Privy Council to argue the case. It retained foreign lawyers. Thus the AG’s department could be free of pressures which are bound to emerge in a big way.