Just about four months short of four years, the first piece in the puzzle that surrounds the horrendous Easter Sunday attacks of 21 April 2019 has finally fallen into place, with the Supreme Court of Sri Lanka announcing its verdict on a dozen or so Fundamental Rights petitions filed over the failure of the defence hierarchy to prevent the attacks. The petitioners had both collectively and separately alleged that their Fundamental Rights had been violated by those whose prime responsibility was to ensure personal liberty as well as national security of the country.
The historic judgement by the country’s apex court that held in favour of the petitioners and found the accused guilty of ‘reckless failure of duty’ offered a ray of hope in these hopeless times that all is not lost and that the law still reigns supreme. It offers hope that although the wheels of justice grind slowly, they do grind. It is also a stark warning to those who continue to use the high office they enjoy to trample on the inalienable Fundamental Rights of the people, that sooner or later, the law of the land will catch up with them and that they will be answerable for their acts of commission and omission while in office.
The judgement delivered by a full bench of the Supreme Court presided over by the Chief Justice with unanimous consent of the presiding judges therefore cannot be subject to appeal. It will no doubt be interesting to see how those found guilty cough up the hard cash to pay the stiff penalties imposed by court. The former President, who started life as a Grama Sevaka in Polonnaruwa, will be hard-pressed to explain how he can pay Rs. 100 million, having all his life served as a Government servant and politician, drawing a five-figure salary for the most part. On the other hand, if someone were to pay the penalties on his behalf, then he, by virtue of continuing to be an active politician, is opening himself up to a whole host of legal impediments not restricted to provisions in the Bribery or Corruption Act.
Notwithstanding the 19th Amendment – which former President Maithripala Sirisena presided over and in fact took credit for – that took away some of the powers of the Executive Presidency and despite his public posturing to date that he wishes to see the post further stripped of power, his actions while in office point to the contrary; in fact it shows a man insincere at the core and cunningly manipulating himself into a position of ultimate power by accruing to himself every department and institution that could fall within the ambit of the Defence portfolio.
While the Constitution through Articles 4(b), 30(1), and 52(2) vests the subject of Defence, including the title of Commander-in-Chief and direction of the defence apparatus, in the elected Executive President, Sirisena publicly portrayed the image of a man determined to divest these extraordinary powers to the Cabinet of Ministers, including the Prime Minister, but was privately helping himself to accumulate more and more power.
To illustrate this, in 2015, just 10 days after he took office, Gazette bearing No. 1897/15 dated 18 January 2015 listed out 14 items as duties and functions of the Minister of Defence. However, subsequent gazette notifications in September 2015, November 2018, and December 2018 gradually increased the spectrum of powers assigned to himself as the Minister of Defence. By the time the December 2018 Gazette appeared, he had bestowed on himself 23 duties as opposed to the 14 when he started off. Similarly, while there were 14 departments that came under his purview in 2015, that number had increased to 21 by December 2018, including two crucial entities that dealt with national security – namely, the State Intelligence Service and the Department of Police, both of which were arbitrarily brought under his direct purview.
This unprecedented accumulation of powers related to all things defence led to the Supreme Court observing in its judgement that the custody of personal liberty and security of the nation lay in the hands of the Minister of Defence. Having become a law unto himself, as epitomised by the manner in which he kicked out his own Government in October 2018, Sirisena for the rest of his term moved to exclude his own Prime Minister and Cabinet from defence and national security meetings up until the Easter Sunday attacks.
The big question that Sirisena must now answer is, why? It will be recalled that the former Attorney General on the eve of his retirement was publicly quoted as having stated that there appeared to be a ‘grand plan’ behind the Easter attacks. He made this observation having gone through the extensive and detailed Special Presidential Commission of Inquiry Report that was submitted to the former deposed President, but never made public in its entirety to date, despite consistent calls to do so by the Catholic Church.
With the Supreme Court having now declared by its historic verdict that the then Minister of Defence – the former President – and four other key officials who directly reported to him were guilty of gross negligence of duty, it now begs the question as to whether they were acting in concert – and, if so, for what purpose and on whose direction? It is unimaginable and unfathomable as to how the Defence Minister, the Defence Secretary, Head of National Intelligence, Head of the State Intelligence Service, and the Inspector General of Police all chose to ignore or disregard specific and credible intelligence on imminent attacks that was available in minute detail as early as two full weeks prior to the actual attacks.
It will also be recalled that the all-powerful Defence Minister had on the very day of the attack embarked on a private tour to Singapore and had even switched off his mobile telephone. Even after officials managed to contact him after frantic efforts lasting several hours, a seemingly-nonchalant President, instead of rushing back immediately, took his own time in returning the next day. Therefore, contrary to the belief at least in some quarters that the judgement has brought closure to this festering wound, it instead opens up a whole new spectrum of possibilities including and not restricted to the filing of criminal charges against those already found guilty of negligence by the apex court.
Possibly sensing such action, there appear to be not-so-discreet attempts to pilfer evidence as cited by His Eminence Malcolm Cardinal Ranjith, who during a press conference on Friday, alleged that a senior Police officer had been attempting to alter ‘B’ reports pertaining to the incident. Coming from a public figure and the principal personality speaking on behalf of the victims, the Cardinal’s allegations merit intervention of the highest authority in order to maintain the integrity of the available evidence.
As far as the former President is concerned, this is the second instance in which the Supreme Court has found him on the wrong side of the law during his one-term presidency. The first instance was when court held that his sacking of the Ranil Wickremesinghe-led Government in October 2018 and appointing Mahinda Rajapaksa as Prime Minister was illegal and ultra vires the Constitution. Even though Wickremesinghe and Co. should have taken Sirisena to task no sooner his immunity ended for this brazen act already ruled illegal by the country’s apex court and which singular act first set off the domino that has eventually crippled the economy, no such action followed and it was left to a bunch of public-spirited individuals to finally take the man to task.