Attorney General In Conflict Of Interests: Pressure From European Union Restores Justice

By Tassie Seneviratne –JULY 4, 2021

Tassie Seneviratne

The severe castigation of the police and the lower courts, by the Court of Appeal, (CA) calls for investigations into the undue incarceration of D/CID Shani Abeysekera. He had languished in remand custody for 10 months during which he contracted Covid-19 and suffered a heart attack and was forced to undergo surgery, the CA remarked.

The Court of Appeal (CA) has stated inter alia: “The allegations against the suspect Shani Abeysekera are a result of falsification and embellishment and a creature of after-thought”. Noting  that the witnesses against Abeysekera had waited six years to make the allegation against him, the CA has stated: “On account of the said unusual and extraordinary delay, the complaint has not only lost the benefit of the advantage of spontaneity, but also smacks of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators, to unduly cause prejudice and harm to the suspect Shani Abeysekera, for collateral purposes.

“Not only that the said delay has not been satisfactorily or credibly explained- It is crystal clear that the statements given by the said witnesses in 2020 are contradictory to statements given by them in 2014.”

The judgement of the CA calls for a vigorous investigation with a view to prosecute the set of collaborators or conspirators in this heinous crime. The Police Spokesman was heard on TV, stating that the police would await directions and guide lines re follow up action. So, the ball has been passed to the Hon. Attorney General’s court for directions. This is strange, as the AG’s directions were not required to investigate the delayed complaint against the CID officers. In the meanwhile, the voice of the people – the bar of public opinion, is screaming for justice.

But, can the AG direct investigations when he too has compromised his position by continuously objecting to bail in this case, which action the CA has described as unbelievable, in the strongest possible words? The AG did not give valid reasons for objecting to bail in the CA, whereas bail is due process, unless valid reasons are adduced for objecting to bail. The AG has thereby got himself into a conflict of interests. 

It is noteworthy that in the Magistrate’s Court (MC), the Magistrate directed the CCD to notice the AG forthwith. The MC however is in abeyance due to Covid-19, and in the meanwhile Shani is languishing under interdiction without pay.

Then what of the judiciary? The CA has also castigated the High Courts (HC) as can be deduced from its judgement. Bail application has been made to HC on 20th August 2020 and the AG was noticed to appear. The case was postponed on four occasions at the request of the AG to file objections. On 27th August the case was mentioned and postponed for 17th September, then for 5th October, 10th November, 26th November, 7th December and on 9th December order was given refusing bail as the AG objected to bail on the flimsy ground that suspect will interfere with witnesses – witnesses enjoying protection of such powerful collaborators or conspirators!

Bail application to the Court of Appeal (CA) has been argued on 15.06.2021 and decided on 16.06.2021. The CA judgement discussed above refers.

Furthermore, where is the supervisory jurisdiction of courts? I remember in the good old days, when judges such as Justice Sri Skandarajah would call for the case record on seeing anything untoward from reading the newspapers or from whatever source, and ensuring that due process was followed. Those judges did not do so for the pleasure of it. The supervisory role was a duty cast on them. It is so even to date, the difference being that now we do not see superior judges asserting their role.

This bail application case was also subjected to Laws delay that vitiates due process and tells heavily on litigants, whilst benefiting lawyers, and courts are ever ready to grant dates. In this case too we saw a judge recusing himself on one date and another absenting for reason of travel disability, on another date, though he was able to travel elsewhere! Laws delay is in effect throwing away all that Lady Justicia stands for- it is turning manna to bitter gall.

At a glance this episode may seem to be a dispute between officers of the Criminal Investigation Department (CID) and officers of the Colombo Crimes Division (CCD). There is more to it than meets the eye. The CID investigation was conducted in 2014 and no valid motive had been adduced for fabrication of evidence. The CID case against DIG Vas Gunawardena has stood the test of a trial at bar and appeals to higher courts, that convicted the accused. The CCD investigation, on the other hand, has been initiated on the findings of a Presidential Commission of Inquiry into political victimization 14 years later, giving no valid reason for the delay to make the complaint.

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