De facto impunity, order of the day

Prashanthi Mahindaratne speaks during a panel discussion hosted by the Centre for Policy Alternatives

A discussion on Sri Lanka’s pressing legal challenges

At a time when the island nation of Sri Lanka is grappling with threats to its democracy,  a crippling economic crisis and a deeply flawed political establishment, one of the most troubling concerns is its inconsistent application of the law, according to one of the country’s top human rights advocates.

 
 The comments were made by Attorney-at-Law Prashanthi Mahindaratne, Sri Lanka’s first woman to serve as a war crimes prosecutor in an international criminal tribunal, at an event to discuss two publications by the Centre for Policy Alternatives (CPA). The event attended by eminent legal personalities in the country was held in Colombo on Tuesday to discuss the CPA’s two latest publications, ‘Salient Aspects of the Public Interest Litigation Jurisprudence in Sri Lanka’ and ‘Elusive Justice and Emblematic Cases in Sri Lanka’ edited by Bhavani Fonseka and Luwie Ganeshathasan. 

 “Among the multitude of challenges Sri Lanka faces at present, the most problematic issue is the inconsistent application of the law. The fact that the rule of law has not been upheld consistently across the board is problematic,” Mahindaratne, who has served as State Counsel at the Attorney General’s Department for a decade litigating civil, commercial and labour disputes, said. 

 “Take a step back and consider the less serious offences, let’s take the anti-corruption laws for instance. From time to time we see regular persons such as school principals, junior to mid-level Police officers, Grama Sevaka officials being prosecuted for bribery and corruption. But how many members of Parliament, how many ministers, how many top-tier bureaucrats have been prosecuted and convicted under bribery and corruption law?” She questioned. Mahindaratne believes that the numbers are so negligible and not even worthy of discussion. 

 Despite the fact that the public is constantly receiving and reading reports of mass-scale corruption taking hold of government entities, the issue persists. According to Mahindaratne, what is even more worrying is that these reports emerge not from the media alone but from Parliament, the lawmaking authority itself. 

 “I’ve followed Committee on Public Enterprises (COPE) sittings for instance. It’s shocking to see some of the very senior bureaucrats being confronted, not with mere allegations but facts and documentation, which show very clearly corruption, and unjustifiable wastage. What’s more shocking is that none of them even attempt to respond, or offer plausible excuses. Most of them just take refuge behind Cabinet approvals, stating that the transaction had Cabinet approval,” she said.

 Mahindaratne questioned as to why the next natural step is almost never taken by the authorities vested with powers to address the issue, namely the Commission to Investigate Allegations of Bribery and Corruption (CIABOC). 

 “The logical next step would be to summon the Cabinet Ministers who give approval, but that doesn’t happen. Then CIABOC can easily use that information and initiate investigations and prosecution. So what you have is de facto impunity,” she said.

 “What I find most disturbing is that impunity is institutionalized. For instance, the ‘83 July violence, has there been a single investigation to date to identify the perpetrators who torched and killed? Going back another decade to the seventies, what about the crimes committed during the first two insurrections? Have we seen any investigations?” Mahindaratne questioned. 

 Institutionalized impunity she believes signals that the legal system too is thereby flawed. “That could indicate that our entire legal system is deeply flawed. I believe that it’s a huge challenge. Instead of really addressing that, any other solution will be mere topical treatment. You need to treat the wound. That is the challenge we are faced with,” she said, 

 The evening saw the discussion flow into the controversial counter-terrorism laws, addressing economic crimes and how well-suited the Sri Lankan legal system is to address these very issues.