By Hemantha Warnakulasuriya Courtesy The Island

September 10, 2017, 12:00 pm

When bookie Mukthar was chained to the hospital bed, accused of violating foreign exchange regulations and being charged before the Criminal Justice Commission, J. R. Jayewardene made a promise to the people that he would abolish those heinous laws and create a dhamista samajayak (a righteous society). True to his word, he abolished the CJC and instead, established the Special Presidential Commission and took away the civic rights of Sirmavo Bandaranaike so that she would not be a threat as long as he ruled. Thereafter, he got Kalu Lucky to throw stones at Supreme Court Judges’ houses and as expected, tried to impeach the fiercely independent Chief Justice Neville Samarakoon.

UNP backbenchers, and some ministers, hurl abuse at the Attorney General’s Department and Wijeyadasa Rajapakse, who had to resign as the Minister of Justice because he refused to interfere with the AG’s Department on their decision to file or not to file indictments against anyone. So, the fruits of yahapalanaya are there for everyone to reap! Attack the AG, attack any officer of the AG’s Department who refuses to toe the government line and even call the Chief Justice of this country “E Miniha”.

Rajapakse, the former Minister of Justice, has revealed that the Attorney General was summoned to Temple Trees and questioned, criticized and abused by some government MPs, including Ministers.

Attorney General Jayantha Jayasuriya has denied he was abused. He says there was a cordial meeting between the Prime Minister and others and that he has never compromised the independence of his institution.

In Sri Lanka, the Judiciary and the Attorney General’s Department have been held in very high esteem though in the recent past the latter has become a tool of oppression used against the political enemies of the government. There were very many instances where the Department has shown that they would not succumb to the pressure of politicians who are temporarily in power for a limited period, but they are beholden to act under the Constitution.

Attorney General Jayasuriya is aware of the long traditions of his department, and the accepted practice to be carried out by the Attorney General is that the Attorney General could be summoned by four (04) persons, i.e. The President, the Prime Minister, the Speaker and the Minister of Justice. Other ministers, even the most powerful, will have to meet the Attorney General in his office. But, it has been the habit of the yahapalana government to call and get other members to question the Attorney General.

The last time when this happened, Yuvanjan Wijethillake was the AG; he was summoned by President Maithripala Sirisena. He went, accompanied by Solicitor General Suhada Gamlath. At this meeting various matters were discussed and when they questioned him on some cases that were pending in the Attorney General’s Department, Gamlath, PC and Solicitor General promptly said, “We have not come here to discuss cases which we do only in the confines of the Attorney General’s Department and we are not prepared to discuss these with other outsiders”. That statement made the government turn hostile towards him. Although he was the most senior person, recommended by Maithripala Sirisena to become the AG, the Constitution Council created under the 19th Amendment to take away the powers of one man to appoint his favourites to this exalted positions of scheduled offices like the AG, he was overlooked, and Jayantha Jayasuriya was appointed as the AG.

AG Jayasuriya says it was he who requested a meeting with the Prime Minister. But, the fact remains that there were other Ministers and very vociferous backbenchers who do not understand a thing about the workings of the AG’s Department. What has not been denied by any party is that the discussion was on delays in filing of indictments against the opponents of this government.

The most vital question is whether the then Minister of Justice, Wijeyadasa Rajapakse ever instructed the AG not to prosecute or file charges or discharge any of the accused, against whom charges were pending, and the second question is whether the AG did as the minister is alleged to have said. The third question is whether the AG will approve the interference of the Minister of Justice to file cases against the political enemies of the present government?

I recall the manner in which the present yahapalana leaders have handled the Attorney General’s Department. They have revived their slogan, horu allanu (‘Catch thieves!’) The UNP expected the presidential commission to cover up the bond scams and help repair its heavily damaged image. Its hopes have been dashed.

Appointed by Maithripala Sirisena, to inquire into the biggest racket this country has ever known, the bond scams, the Presidential Commission sought assistance from the AG’s Department. Quite unexpectedly, hitherto unknown two most senior lawyers of the Attorney General’s Department, Dappula de Livera PC, and another senior officer of the Attorney General’s Department, Yasantha Kodagoda, were appointed to assist the Commission. De Livera has never sought any undue publicity as he thought it would compromise his position as the Legal Officer of the Attorney General’s Department, as he has been appearing mainly in the Court of Appeal and Supreme Court on very important cases. But, everyone in the profession knows that he is one of the most respected persons with the highest integrity and that he would not be prepared to consider any leniency towards an accused even at the behest of a Senior Counsel or a President’s Counsel, but would act according to his conscience.

The two Supreme Court Justices, Justice K. T. Chitrasiri and Prasanna Jayawardena have earned the respect of all judges, lawyers and the members of the public. People have started sending the commission information which they have refused even to convey to the COPE (Committee on Public Enterprises). The findings of the commission have resulted in the resignation of Ravi Karunanayake and speculation is rife in legal circles that what is being revealed may even implicate the high and mighty of the UNP. Therefore, the government felt the need to attack de Livera and his team and Minister of Justice Rajapakshe.

Mahinda Rajapaksa, as the President, was angry with the Attorney General because she had not heeded his request to prosecute his enemies. After the retirement of C. R. de Silva, PC, Rajapaksa appointed Mohan Peiris as the Attorney General and took the AG’s Department under him. The entire legal profession, even the most loyal supporters of President Rajapaksha, frowned on political interference with the judiciary. The manner in which the Attorney General’s Department prosecuted Sarath Fonseka and acquitted some of Rajapaksha’s supporters from grave crimes caused his government to incur public opprobrium. The process of interfering with the judiciary and penalising the judicial officer who did not toe the government line culminated in the removal of Chief Justice Dr. Shirani Bandaranayake. It was not only her judgment on certain Bills presented by the government, but the decision of the Judicial Services Commission to suspend District Judge, Aravinda Perera, led to her ‘impeachment’. Mahinda Rajapaksa asked CJ Bandaranayake to see him, but the latter wanted to know the reason. She said, unless the reason was given, she and other Members of the Judicial Services Commission, they would not meet the President. That sealed Dr. Bandaranayake’s fate as the CJ.

The yahapalana government was elected to restore the rule of law and make state institutions, including the judiciary, independent. In 2015, Mohan Peiris the then Chief Justice, demonstrated his willingness to toe the line of the new government, but in vain, according to some ministers. Thereafter, the President removed Mohan Peiris by adopting a method advocated by the UNP avoiding impeachment in an unconstitutional manner.

Successive governments have tried to control the Attorney General’s Department. On the other hand, Wijedasa Rajapakse in order to expedite and clear the backlog in the AG’s Department, he had sought to increase the cadre of the Attorney General’s Department by recruiting lawyers to handle these cases which were being investigated by various branches of the police. The Ministry decided to recruit thirty (30) new lawyers in order to speed up the prosecutions piled up at the Department, for lack of personnel. In fact, in order to handle that backlog of cases the Attorney General’s Department needed about one hundred more Attorneys’. But, for the 30 vacant positions only 11 persons applied and most of them were not fully qualified to hold those posts.

Deputy Minister Ajith Perera, who is aspiring to be a Minister, has vociferously campaigned for a new Criminal Procedure Code to prosecute the Rajapaksas. He realized that such a course of action was unconstitutional only when Tilak Marapana said so. Now, Perera says that no new Codes are necessary, and that the present Criminal Procedure Code is sufficient to prosecute corrupt politicians. One of the allegations against Wijeyadasa Rajapakse was that he had not appointed a trial-at-bar and obtain convictions for cases against politicians of the previous regime. This, Perera has said as a fairly senior lawyer. Even a law student knows that the Minister of Justice cannot demand a trial-at-bar and it is a task for the Attorney General, Anyone who demands a trial-at-bar interferes and inter-meddles with the affairs of the judiciary. Even if the Attorney General’s Department meets the demand of politicians to prosecute their enemies, what is the assurance that could be given that the Chief Justice will agree to establish or constitute a trial-at-bar? Ajith Perera and others seems to have forgotten that Mohan Peiris is no longer the Chief Justice and that Priyasath Dep is the current Chief Justice! What is the guarantee that he would appoint a trial-at-bar? Do they expect the Minister of Justice to insist that the Chief Justice appoint a trial-at-bar? This is a most ridiculous argument that has been forwarded by a Deputy Minister cum lawyer. All these years, trials-at-bar have been appointed only in respect of serious cases of murders except on one occasion when Chief Justice Mohan Peiris appointed three judges to hear the case against Sarath Fonseka at the behest of the then President Rajapaksa.

Even Mahinda Rajapaksa could not get the Attorney General to soft-pedal cases against his political supporters, like former Tangalle Pradeshiya Sabha Chairman Sampath Vidanapathirana and even after the conviction and sentencing the accused for 20 years, the Attorney General appealed against the sentence requesting the Supreme Court to enhance punishment.

I am certain that if there is pressure from any quarter to constitute a trial-at-bar, purely on the basis that the accused is a politician, the Chief Justice will not yield to it. Pressuring the judiciary in this despicable manner is perhaps worse than the savage act of stoning the houses of judges under the JRJ regime!