Real risks of a special presidential commission of inquiry

The presenting of a Cabinet Paper by Prime Minister Mahinda Rajapaksa this week, proposing the establishment of a Special Presidential Commission of Inquiry (SPCOI), under the SPCOI Law (1978) to investigate government officials who had conducted ‘witch hunts’ of other public officials during the time of the SirisenaWickremesinghe coalition Government as well as ‘third parties’ who had driven those investigations, has sinister implications that must be recognised in all their gravity.

Legendary and frightening use of the SPCOI law

It is routine, of course, that with every change of government in power, inquiries are made into ‘political victimisations’ during the period of its predecessor. But this move, predicated on the activation of a highly critiqued and long dormant law, spells something different in its intent. If the Rajapaksa brothers, back in power in Sri Lanka, are to hold true to their promise during the election campaign that there will not be ‘revenge politics,’this proposal must surely be reconsidered. For the use of the SPCOI law is testimony to the exact opposite intent of what was professed with dewyeyed solemnity on the ‘Pohottuwa’ election stage.

To be clear at the outset, the SPCOI law is not to be confused with its far more innocent cousin, the Commissions of Inquiry Act (COI Act, 1948) under which many of the bodies to look into various instances of fraud and corruption were appointed in recent years, including into the now infamous Central Bank bond ‘scam.’ Assessed purely by a legal yardstick, the SPCOI law is highly problematic for various reasons as would be examined later in these column spaces. Its use as a political instrument of revenge by various Governments in Sri Lanka’s history is legendary and frightening. In fact, it is a matter of profound irony that this was a law brought into being by a United National Party (UNP) Government to deprive the Sri Lanka Freedom Party (SLFP) matriarch Sirimavo Bandaranaike of her civic rights through a process that was neither fair or just in 1978.

The SLFP which has entered into a pact with the ‘Pohottuwa’ for its survival must take a bow in acknowledging that irony if there are any in the party ranks capable of even understanding these issues. A cynic might ask as to why there is any surprise that election promises made by ‘Pohottuwa’ campaigners are departed from, so early and so decisively. That well may be so. Yet, it is important to mark this development at the outset as having crucially important repercussions where law and order is concerned, at its very basic level. As was editorially pointed out in this newspaper last week, it is important not to ‘whitewash’ the past. That caution was made in the context of the new administration’s ‘order to transfer a key investigator from the Criminal Investigations Department (CID) to ‘Siberia’ as it were, and then to ban 700 CID officers from leaving the country.’

Allowing an easy violation of fair procedure

On the heels of such swift action, an SPCOI to ‘investigate’ public officers must inevitably catch up CID officials who have had the temerity to annoy politicians at the receiving end of their inquiries. Indeed, as opposed to the spluttering if not sabotaged investigations that took place under the Wickremesinghe administration with its head of police being captured on television cameras reassuring the Wickremesinghe loyalist Minister of Law and Order that a certain Rajapaksa ‘favorite’ will not be brought before a court of law, we can be certain that the current political leadership will be merciless when it comes to crushing its opponents. All this is not to say that if there was any wrong doing during ‘yahapalanaya’ times, that must not be investigated. On the contrary, that must be looked into. But the question arises as to whether the SPCOI law is the fit instrument to achieve these ends.

There is a reason as to why Governments in the past decades resorted to the COI Act and not the SPCOI Act when controversial matters were inquired into. For those lazily disinclined to distinguish between the two, this is a major mistake. The SPCOI allows an easy violation of fundamental rules of evidence and fair procedure. The deprivation of civic rights of former Premier, the late Sirimavo Bandaranaike and other frontrankers of her administration by the late President J.R. Jayawardena may be argued to be the most egregious example of political ‘witch-hunting.’ Even when the Court of Appeal held that the relevant SPCOI looking into her actions could not be vested with retrospective powers, that was nullified by the Parliament. During the Presidency of her daughter, Chandrika Kumaratunga, the SPCOI law was used in a palpably political manner. Remarkably (or perhaps, not really so), the fact that senior judges sat on these Commissions was no safeguard against abuse, though in some cases, one or two resigned in protest.

In an essay that I wrote in the 1990’s while studying constitutional law at the Faculty of Law, University of Colombo and observing how the Special Presidential Commissions of Inquiry into the assassinations of Lalith Athulathmudali and Vijaya Kumaratunga abandoned all pretensions to impartiality, I could not help but marvel at how casually judicial rectitude could yield to political expediency. The two Commissions discarded rules of fair trial and unhesitatingly took the evidence of persons with axes to grind as concluding the guilt of others. One report waxed eloquent on the ‘physical beauty’ of Kumaratunga in a shameful reflection on the integrity of its authors. Statements repeated to second and even third persons were treated as ‘unassailable evidence.’

The reinvention of a hazardous wheel

A trenchant critique of the functioning of the Commissions by the reputed authority on criminal law and former Supreme Court judge AC Alles rubbished the conclusions of the Commissioners that a prima facie case had been established against those ‘implicated’ (including the late President Ranasinghe Premadasa), because they ‘may’ have had a ‘motive.’ As Justice Alles cogently pointed out, ‘guilt by motive’ was ‘completely alien to established principles of criminal law.’ Reflecting on both these critiques at the time, author of ‘Sri Lanka: Arrogance of Power – Myth, Decadence and Murder, academic Rajan Hoole observed that, ‘the legal process has become debased to a point where its function is more to suppress the truth about major national calamities than to bring it out and make the guilty accountable.’

Is this what we are now poised to return to? If so, it will be a reinvention of an old and hazardous wheel. And the question remains as to why the political opposition stays silent as these proposals are advanced? It is a disgrace that internal crises of the United National Party have overshadowed the crucial role that it must play. Each day that this uncanny silence persists, one more step will be taken to roll back even the small democratic reforms evidenced in recent years.

Resistance to this roll-back is not optional but imperative.