Special Presidential Commissions A luxury we can’t afford !

The country’s law enforcement and judicial arm is empowered by law to carry out the necessary investigations, gather evidence and prosecute a case

• After all, laws are amended practically overnight, especially when it benefits politicians
• Wide powers are conferred upon the SPCs to gather evidence
• In addition, all what SPCs appear to do is delay bringing to book, the many culprits of the day, by a duplication of court procedure

 9 June 2020

It is fervently desired that the present Head of State will not acquire the habit of appointing Special Presidential Commissions of Inquiry (SPCs) to investigate the bribery and corruption, fraud and terrorist attacks that are part and parcel of modern day Lanka, in the same manner his predecessors did, squandering millions of rupees which the country can ill afford. Instead will not the swift resort to due process of law, efficiently and expeditiously, reap far more tangible results? 

Colossal sums of tax payer’s money are spent on these SPCs and to what end? The SPC’s reports are then languishing in the President’s Office or at the Attorney General’s Department or the CIABOC and little is done to prosecute the main culprits named and exposed. This has been the pattern from time immemorial. 

We recall the wide publicity given to not one, but three SPCs appointed to investigate the deaths of Lieutenant General Denzil Kobbekaduwa and nine others. Was even one suspect successfully prosecuted or even charged before Court, although the last Commission appointed by President CBK speculated that then President RanasinghePremadasa, as well as members of the Sri Lankan Army such as Major W A N M Weerasinghe, were “directly responsible” for his death[Wikepeida]. 

The famous (or infamous) Bond Commission report was presented to Parliament on 17th January 2018 and 34 incidents of Corruption were identified. Has a single incident been successfully prosecuted to date? Bribery Commission Chairman Sarath Jayamanna confirmed to the public in several contemporaneous news articles that CIABOC received the report on 10 January 2018. What have the CIABOC done thereafter? The response of CIABOC to their inaction is that statements are being taken. What is the need for a further investigation or taking fresh statements by the CIABOC on these same issues, when evidence has been given under oath and tested before the SPCs? Why can’t charge sheets be prepared on the strength of these SPC findings and filed in Court? If the Bribery Act stands in the way of such procedure, surely the law can be amended? After all, laws are amended practically overnight, especially when it benefits politicians. 

Furthermore, once prosecutions commence before Court against the identified perpetrators, then a lengthy litigation process takes place, with the evidence presented before the SPCs being re-presented(71 witnesses appeared before the SPC in the bond scam SPC) and every conceivable objection raised by the purported culprits to such evidence, often resulting in the case sailing up and down the many tiers of original and appellate jurisdiction. As the case is tried and tested before the SPCs and the case of the prosecution thus well exposed, this exercise also gives a significant advantage to the purported culprits who have enough time to cover their tracks and concoct various stances and explanations when they are finally prosecuted before Court.  

Of course, one cannot ignore the fact that in terms of the Special Presidential Commission of Inquiry Law, wide powers are conferred upon the SPCs to gather evidence. Clause 7(1)(d) of the Law states “notwithstanding any of the provisions of the Evidence Ordinance, or of any other written law, to admit any evidence, whether written or oral, which might be inadmissible in any court in civil or criminal proceedings;” Those in favour of SPCs tend to rely on this provision, to justify the appointment of these SPCs. However, can evidence which is inadmissible before court in civil or criminal proceedings, become subsequently admissible in court, merely because it had been hitherto presented to the SPCs? To us commoners, it is logical to believe that evidence inadmissible before Court will remain inadmissible before Court, irrespective of whether or not it had been submitted to the SPCs. Therefore, what is the advantage that a party gains out of this inadmissible evidence entertained by SPCs, other than for public consumption which is at the end of the day a worthless exercise given the short memory the masses possess. Have we not had enough cases, where culprits found guilty on the public platforms are reluctantly set free by Court, merely because of the inadmissibility of evidence.There are judicial pronouncements where the Courts have reluctantly freed a culprit due to lack of acceptable evidence to the charges, although the guilt is exposed on the public platform. After a few years the same culprits bloom lily white and the public forgives and forgets. 

The country’s law enforcement and judicial arm are empowered by law to carry out the necessary investigations, gather evidence and prosecute a case and if there are shortcomings in this system, those must be addressed and redressed.  Generally when a crime is committed, isn’t a B report filed in Court with the initial fact findings by the police or CID, which enables them to thereafter obtain the necessary orders or warrants from the Magistrate to successfully complete their investigations? Surely, a Special Presidential Commission at a colossal expense need not be established to facilitate fact finding with the resulting report gathering dust in a Bureaucrat’s office or the National Archives! 

Another Special Presidential Commission was appointed to investigate the purported wrong doings at Sri Lankan Airlines and Mihin Air as far back as February 2018 and a report was presented to the then Head of State in or about August 2019. This report was forwarded to the Attorney General to take necessary legal action on 32 recommendations made by the Presidential Commission of Inquiry. What happened to this report? What was the cost of this report? There was a media show of one ex-big wig of Sri Lankan Airlines and his wife being taken into custody and a few court appearances and that too after their wrongdoing was exposed in UK and not thanks to the SPC report. However, that saga is no longer in the limelight and there is absolute silence even by the media on the present status of the case. 

To our mind, the SPCs are appointed at a drop of a hat to ease the public pressure on politicians to take action against crimes exposed. The only good purpose they serve is to perhaps educate the public who they should not vote for at the next election. But then, a pack of rice, a bottle of arrack, a promise of some allowance or a job is all that it takes for the masses to forget the past sins of their rulers. 

In addition, all what SPCs appear to do is delay bringing to book, the many culprits of the day, by a duplication of court procedure. Are the appointment of SPCs a genuine effort to expose crime by the Head of State or a way to generate jobs for ones’ cronies or help the culprits buy time? The Sri Lankan Airlines SPC, for example consisted of several retired judges and civil servants, and the Attorney General’s representative assisting the Commission, himself retired in the midst of it all and instead of assigning another senior officer from AG’s Department as is often done, he was granted extensions until the Commission concluded. Is this a means of keeping “friendly” retirees occupied and paid, whilst buying time for the culprits who are generally thick as thieves with politicians of all colour? It is the politicians who consistently hail these SPCs as epitome of their commitment to deliver justice!It is indeed high time that the cost of these SPCs and how much is paid to the Honourable Commissioners are publicized so that the general public can decide whether these SPCs are indeed ‘worth the cost’.
The Parliamentary Select Committees (PSCs) appointed to look into wrongdoing, too are most often white elephants staged to entertain the public. What was the use or value of the Bond Commission report issued by the PSC by a bunch of MPs who barely understood the working of the bond markets? Where is that report now? Is it even relied upon for any prosecution? The Committee appointed to look into the Easter Bombings was icing on the cake! How much of time and money that exercise cost, is anybody’s guess! And to top it all, the Committee consisted of many who themselves were being named as culprits by SPCs!Did any one of them have any experience and knowledge in litigation or defence even to conduct an inquiry? What happened to that report now? Or was there a report at all? 

If the SPCs are indeed a necessity for the successful detection of a crime or collection of evidence, the legislators then must pass law, making such findings acceptable to Court so that the Commission findings can be adopted by the Court of Law without further ado and the prosecution can rest their case with the presentation of the report which should include the entirety of the evidence gathered before the SPC so that the inadmissible evidence becomes in fact admissible. This would cut the time of a court procedure by half. A further opportunity can be given to the purported culprits to lead evidence in defence and/or challenge evidence so presented. Otherwise, most perpetrators will remain free during their lifetimes for sure or by the time they are punished, they will be so aged that spending their remaining life in the peace and quiet of solitary confinement of a prison may be in any event their preferred choice.