Photo courtesy of Sri Lanka Guardian

Since mid 2020, there has been a key feature emerging from the justice system in Sri Lanka – a trend that people with political affiliation have been either acquitted by courts, cleared and set free or provided presidential pardons despite charges for financial fraud, financial misappropriation, misuse of public property and murder.

Insufficient evidence, technical errors, procedural errors and the filing process by legal institutions can be identified as reasons that have prevented further proceedings, thereby influencing the acquittal and the exoneration of the accused. One could even argue that there is nothing wrong with the process. However, it is important to understand the systemic trends that operate outside and beyond this rationale. There were 17 major instances that occurred between March 2020 and October 2021.

  1. The acquittal and release of Ali Roshan and four other suspects accused of illegal possession of baby elephants
  2. Former Minister Basil Rajapaksa acquitted and released from the Divi Neguma case
  3. The acquittal and release of former Secretary to the President Lalith Weeratunga and former Director of the Telecommunications Regulatory Commission Anusha Pelpita in the Sil Redi case
  4. The release of Batticaloa District Parliamentarian Sivanesathurai Chandrakanthan, the main suspect in the murder of Joseph Pararajasingham
  5. The acquittal and release of Minister of Agriculture Mahindananda Aluthgamage, who was accused of misappropriating Rs. 3.9 million
  6. Acquittal and release of former Director General of Customs Rajan Kanagasawe, accused of misappropriating Rs. 5 million
  7. Release of former Chief Justice Mohan Peiris and two other suspects accused of financial misconduct
  8. Release of Minister Johnston Fernando and two others from the Rs. 40 million bribery cases filed against them
  9. Release of the former member of parliament Sajin de Vass Gunawardena, who was accused of causing a financial loss of Rs. 883 million as the CEO of Mihin Lanka
  10. The acquittal and release of former DIG Vass Gunawardena and his wife, who were charged with illegal acquisition of land worth Rs. 70 million
  11. Release of Minister of Ports and Shipping of Rohitha Abeygunawardena, who was charged with undeclared and illegally earned assets of Rs. 41.2 million in cash and property
  12. The acquittal and release of eight suspects, including Nissanka Senadhipathi, who were charged with financial misconduct and causing a loss of Rs. 11.4 billion to the government through the operation of the Avant Garde company
  13. The release of the main suspects in the murder case of journalist Nimalarajan Mylvaganam
  14. The acquittal and release of Minister Basil Rajapaksa and former Director General of the Divineguma Development Department Kithsiri Ranawaka, accused of misappropriating Rs. 36.5 million in obtaining GI pipes in 2015.

Several common features can be identified when considering the origin of the case proceedings, the nature and the operation of the proceedings and the filing. All these cases were filed during the tenure of the previous government. An important element included in its 2015 election platform was to take legal action against the politicians and officials who were involved in serious financial misconduct.

The main argument by the accused was that the cases were baseless and filed seeking political revenge. When a charge is filed against a person, several steps can be taken by the accused through the judicial process according to the legal framework of the country. The accused can submit a preliminary objection at the criminal trial itself. A fundamental rights petition can also be filed before the Supreme Court. The petition may indicate that their rights have been violated or that they are about to be violated. In addition, under Article 140 of the Constitution, a writ application (injunction order) can be requested from the Court of Appeal.

However from 2015 to 2019, the suspects did not take initiatives to rectify the allegations levelled against them by resorting to these measures. Since the suspects were facing serious financial charges, acquittal could lead to further deterioration of the economy while the acquittal and the release of a key suspect in a controversial murder case would impact the rule of law and order.

Presidential pardon

President Gotabaya Rajapaksa has pardoned two people convicted of murder through the courts. In the first five months after assuming office, he pardoned former Army Sergeant Sunil Ratnayake who was convicted for the murder of eight people in Mirusuvil in ​​Jaffna, including a 5-year-old child, in 2000. In July 2015, the Colombo High Court convicted Sunil Ratnayake and sentenced him to death.

In July 2021, Duminda Silva was pardoned and made the Chairman of the National Housing Development Authority. He was the prime suspect in the assassination of Bharatha Lakshman Premachandra and was convicted by the Colombo High Court in 2016; the petition filed by him against the verdict was rejected by the Supreme Court. President Rajapaksa does not seem to have followed the process, unlike previous presidents, as provided under Article 34 of the Constitution to be followed in granting pardons where a report is obtained from the judge who presided over the case, followed by the advice of the Attorney General regarding the report and obtaining the recommendations of the Minister of Justice.

A new president and a new approach

President Rajapaksa’s election manifesto, Vistas of Prosperity and Splendour, contained a policy to strengthen the legal and institutional system required to keep politicians and public servants away from the path of corruption as much as possible. He also undertook to provide justice to politicians and government officials who were allegedly politically victimised during the period of the previous government.

The Commission to Investigate Political victimisation was appointed by an extraordinary gazette proclamation in January 2020 to examine and obtain information on alleged political victimisation that took place from January 2015 to October 2019. The commission report recommended the withdrawal of nearly 40 cases of bribery and corruption pending in the courts, identifying them as incidents of political victimisation.

Technical issues that have influenced the acquittal of the suspects include inadequate evidence, discrepancies and inconsistencies in the evidence, time lapses and the inability to prove the submitted evidence beyond a reasonable doubt. The Commission to Investigate Allegations of Bribery or Corruption has withdrawn three of the 17 cases due to the nature of the information lined up for the cases and the inadequacy of evidence. Minister Rohitha Abeygunawardena, former Chief Justice Mohan Peiris and former Member of Parliament Sajin de Vass Gunawardena have been released. The acquittal of four persons, including Ali Roshan, was due to insufficient evidence while the former Director General of Customs was acquitted due to discrepancies in the evidence presented. The withdrawal of the indictments against Pillayan, Vass Gunawardena and his wife and the indictment in the Nimalarajan murder case by the Attorney General’s Department resulted in the release of the suspects.

The Commission to Investigate Bribery or Corruption or the Attorney General has acquitted 16 suspects in five cases due to withdrawal of charges or indictments on various technical grounds. In addition, 27 people have been acquitted and released from eight cases. Forty three suspects who were charged with bribery, corruption or criminal involvement have been acquitted or released by the courts.

This article was translated from Vikalpa