May 10 2022. views 8565
Prashanthi Mahindaratne is the first Sri Lankan woman to serve as a war crimes prosecutor in an international criminal tribunal, having prosecuted at the United Nations International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, from February 2002 to June 2011. She prosecuted high-level war crimes, such as the crimes committed in the siege of Sarajevo, the shelling of Dubrovnik, ethnic cleansing in Croatia, and the case against the former President of Serbia, Slobodan Milosevic. She prosecuted in the high-profile trial against military personnel for crimes committed against civilians in the war zone in the North - the case of the Rape and Murder of Krishanthi Kumaraswamy and others. She was appointed Senior Counsel for Julius & Creasy in July, 2011.
She served as Honorary Legal Advisor to the Prime Minister of Sri Lanka on Human Rights during the period 2015 to 2018, and as a member of the Government’s Working Group on Transitional Justice and Reconciliation Mechanisms. She co-drafted inter alia, the Office on Missing Persons Act No.14 of 2016. She was appointed by the World Bank as Senior Legal Consultant to the Right to Information Commission in March 2017, and by the UNDP as Senior Legal Consultant to the Office for Reparations established under the Office for Reparations Act. An ardent conservationist, she regularly carries out pro bono litigation for the protection and conservation of fauna and flora.
1. The Nation is rightfully blaming the politicians for the crisis. Have the citizens too contributed to this unfortunate outcome?
Yes, the main perpetrators are the politicians, but I believe the citizens too have contributed to this. The voter is responsible to ensure that the elected candidate is a person of credibility and integrity, worthy of sitting in government. But look at the number of MPs who have criminal charges pending against them, including charges of corruption. There was even an MP convicted on charges of murder elected to Parliament. How irresponsible of the voter to elect such people.
It’s the voter who enables these corrupt individuals to access public funds. So we have also contributed to this predicament. Further, people pay undue obeisance to politicians - inviting them as chief guests at functions, giving them “VIP” treatment, and naming roads and buildings after them. Politicians are elected by us and paid by us, so why do people bend backward to please them? Why do we make them feel larger than what they really are? When I was working in The Hague, I used to see members of the Dutch Royal Family quietly driving by - no motorcades, security entourages, or fire trucks and ambulances chasing them, and security guys waving people off the road as it happens here.
Dutch ministers ride the tram alongside members of the public and no one gives them a second look. But look at Sri Lanka – the so-called ‘VIP’s travel about with massive security escorts, at great cost and inconvenience to the public Thanks to the “Aragalaya”, hopefully, this pathetic culture will be eliminated. I recall the late Minister, Mr. Mangala Samaraweera telling a student at some function, never to worship politicians, when the student tried to worship him. These primitive practices have created a shameful culture where people, even top corporate personalities and celebrities lie prostrate (speaking metaphorically) before politicians. So is it a wonder that the politicians think that they can get away with anything, and they have got away with a lot!
2. Why is Sri Lanka placed so high in the corruption index? Where did we go wrong?
I believe it’s a collective failure. While the principal perpetrators are politicians and public officers who have been involved in corruption, the citizen is not blameless either. The giver of the bribe is as much to be blamed as the person who solicits or accepts it, and is also liable for prosecution under the Bribery Act. How many people can honestly claim that they have never bribed a public official? Many law-abiding people, don’t think twice about paying a clerk at a government office to get some personal matter attended to, or to hand over Rs.1000/- to a traffic cop to avoid a traffic ticket. When you give a bribe, however, small or innocuous it is, or however the low level of the state hierarchy it is done at, you are nurturing the system of corruption and you are perpetuating the crime.
Corruption is like cancer, it occurs at multiple levels and at varying extents and volumes. And if you enable it at whatever level, then you are contributing to its’ growth. In order to completely eliminate corruption from our system, not only do we need to elect a completely different set of persons to the government, but we need to establish institutions and systems that can work with transparency and can withstand objective scrutiny. We need a brand new institutional framework. The country should be system-driven as in the developed states, not individual-driven. So whoever sits in the chair will have to adhere to the system or he/she can be kicked out by the system itself. We need a complete overhaul where the bureaucrats don’t feel that they hold their office at the pleasure of these politicians. We need a system where even a junior clerk in a state agency can refuse an illegal order from his superiors.
3. The Attorney General’s Department is under public fire, pursuant to the withdrawal of cases against members of the ruling party. As a former officer of the department, what are your views?
I can say that many of my former colleagues at the AG’s Department are excellent officers, who, I believe will act in accordance with their conscience and the Rule of Law. So I have no desire to trash the Department. Of course, I am shocked by the withdrawal of the indictments, particularly because the selected cases give one the impression that perhaps it was done for extraneous reasons. During my time at the Department, and to the best of my knowledge even afterward, there was no practice where a newly appointed AG reviews indictments pending before the court preferred by the predecessor. If that were to happen, the AG’s entire tenure will be expended reviewing indictments preferred prior to his time. So I cannot guestimate what the legitimate rationale may be for this practice, if any.
There is prosecutorial discretion, whether an indictment must be preferred in a certain case or not, and based on the prevalent law, I don’t believe that the decision of the AG to either indict or not to indict can be questioned. However, it is completely different once the indictment is before the court. There have to be exceptional circumstances to warrant the withdrawal of an indictment. Because the established test is that there must be prima facie evidence to warrant an indictment. So where the AG has indicted an accused, it is reasonable to conclude that the AG under whose hand the indictment was preferred, was satisfied that there was prima facie evidence to warrant an indictment. That should not be second-guessed by his successor. Now whether that evidence is beyond a reasonable doubt or not, to warrant conviction or acquittal, is up to the court.
Once an indictment is forwarded, the AG must leave it to the court to determine that fact. By the withdrawal of the selected indictments, in that manner, I believe the integrity of the process may have been compromised. It has the potential to destroy the credibility and sanctity that ought to be attached to the AG’s Department. We have to wait to hear the AG’s explanation since members of the private bar have asked for an explanation. I can only say that when institutions that are supposed to uphold the Rule of Law, compromise it, you destroy people’s hope to obtain justice through the law of the land. Then it’s a matter of time before people start taking the law into their own hands, which could drive the nation towards an abyss, sans the rule of law. It is truly important for all concerned to understand that their actions today, which may be beneficial to that individual in the present day, will in all probability destroy the future for his or her children and the descendants to come.
4. The Government now admits that it made mistakes, what next?
Indeed, but where is accountability for all this? The President has accepted that he made mistakes regarding the ban on chemical fertilizer and the delay in seeking IMF assistance. The Finance Minister called the Government’s policy to reduce taxes a “historical mistake”. He also admitted the decisions to artificially control the Rupee and let it suddenly float, the uncontrolled printing of currency, and the failure to restructure external debt as “mistakes”. So the Government says mea culpa. What about accountability?
These are not mistakes that led to the kitchen catching fire or the car getting stolen. These “mistakes” have cumulatively led to the financial death of Sri Lanka. And while the Finance Minister says me culpa in respect of said “mistakes” that others in his government committed, he quite forgot to say me culpa for being the force behind the 20th Amendment. And now he advocates its’ repeal, and reverting to the 19th Amendment, after 2 plus years of its’ grave consequences. So what about accountability for these failures, which falls clearly within his arena as Minister of Justice? In a developed State after such egregious mistakes, the government would have immediately resigned.
In the West when political parties lose elections, the leader of the party resigns. You may recall how Premier David Cameron resigned when the British public voted to leave the EU, rejecting his entreaties. That shows that politicians of integrity will always bow down to the will of the people. But can you think of one politician who has resigned or stepped down in deference to the will of the people in Sri Lanka? I read a news report that the Finance Minister has said that the Secretary to the Treasury, the past two Governors of the Central Bank, and senior economic advisors to the President had “misled” the Cabinet regarding the economic situation. So those named officers should be investigated to determine if the wrong advice was given to serve an extraneous agenda.
For example, seeking IMF assistance would compel the government to restructure debt, which will not be in the interest of the creditors. So it must be investigated if such wrong advice was given for the benefit of any such party. In any event, whether the misleading was deliberate or based on sheer ineptitude, the authorities should consider legal recourse. Under our law, if any party causes loss or damage, including due to negligence, then the aggrieved party can sue the offending party for damages. So the Minister of Justice should now request the AG to institute an action to recover the damages against the named officers. If the Government doesn’t pursue legal recourse, I do hope the BASL will consider public interest litigation seeking damages against those responsible.
5. Do we have adequate laws to punish the wrong-doers and recover stolen assets?
The Commission to Investigate Allegations of Bribery or Corruption is mandated to investigate and prosecute under the Bribery Act. Additionally, a person can be prosecuted under the Prevention of Money Laundering Act (PMLA), where he/she is found to have directly or indirectly engaged in any transactions involving property derived from any unlawful activity. The term “unlawful activity” is defined to include, inter alia, bribery, and corruption.
A significant feature of this law is that if any person is unable to explain the sources of funds or assets, or where the funds or assets are not commensurate with his/her known sources of income, it is presumed until the contrary is proven that the said property has been derived from unlawful activity, and he/she would be liable to be prosecuted under the PMLA and on conviction punished with rigorous imprisonment for a period between five to twenty years. The court is also empowered to recover up to three times the value of the property by way of a fine and forfeit the property.
The Declaration of Assets and Liabilities Law would have been a useful legal instrument to enable the authorities to assess if any persons had acquired assets, which are not commensurate with their known earnings if only the law was consistently implemented as a matter of course, which doesn’t happen. Further, it is an archaic piece of law passed over 45 years ago and does not address the present-day situation in respect of wide-scale corruption. Under this law, all MPs, public officers, members of local governments et al are required to submit their assets and liabilities declarations annually. However, the penalty for failure to submit or make a false declaration is a mere fine of Rupees 1000/- or imprisonment of either description for a term not exceeding one year or to both such fine and imprisonment. In my view, this penalty is far too lenient and is not adequate to compel compliance.
There are also many other weaknesses in the law. For example, MPs have to submit their declaration to the Speaker, ministers have to submit to the President. There is no provision as to whom the President must submit his assets declaration. And there is no legal obligation cast on any entity to monitor compliance. In my view, the law ought to be reformed to inter alia include provisions requiring declarations of the President, ministers, parliamentarians, elected officers, ministry secretaries, and very senior bureaucrats heading institutions to be published proactively.
However, the critical question is whether we have the capacity and ware-withal to find assets siphoned off overseas and to have them repatriated to Sri Lanka. We would need assistance from foreign states for this. There is the Mutual Assistance in Criminal Matters Act in terms of which we can seek the assistance of foreign states in advancing investigations overseas. Sri Lanka is also party to the multilateral treaty, the UN Convention against Corruption, through which we can seek the assistance of state parties to the Convention, including in engaging in the Stolen Assets Recovery Initiative (StAR) of the World Bank and the UN Office on Drugs and Crime.
How far any of these legal or other mechanisms would be effective will depend on the will of law enforcement authorities, including the attorney general to investigate and prosecute these crimes. To start off, the authorities should investigate the former officers of CBSL and Treasury, whom the Finance Minister named as having misled the government regarding the true state of the economy, and consider if they are liable to be charged under the Penal Code and/or the Offences against Public Property Act.
6. Do you think we need a new Constitution? If so, what changes would you advocate?
Absolutely! I believe the 1978 Constitution has been crafted with the singular objective of fortifying power around one entity – the executive presidency. If I were to make recommendations for a new constitution, I will submit the following, inter alia – abolish the executive presidency; include all human rights recognized under the Universal Declaration of Human Rights, including the Right to Life, as justiciable fundamental rights; add socio-economic rights as justiciable rights, which would enable a citizen to seek legal recourse against the government when there is mishandling, corruption or waste of public funds; include constitutional duty upon the prime minister to appoint cabinet ministers based on their competence and qualification to handle the specific portfolio (it is due to the absence of such a requirement in the 1978 constitution that most cabinet or state minsters are assigned subject matter completely out of their depths); minimum qualification to contest as a member of parliament (even for a junior level administrative position in the public service there are minimum qualifications required.
Parliament is where laws are passed, and amongst many other vital functions, it has full control over public finance. So why would you not require minimum qualification for an MP?); provisions to enable the State to recover stolen assets from politicians, bureaucrats, and their families, on conviction for charges of corruption, mismanagement, excesses, or waste of public funds and resources.
A new constitution must ensure that there is a clear separation of powers and that crucial appointments are made by an independent body, such as the Constitutional Council; rigid provisions in respect of government procurement processes, eliminating room for unsolicited projects and the possibility for politicians and interim parties to receive ‘commissions’ at the cost of the State; clear constitutional obligations on the government to protect and conserve the environment, our forests, and the wildlife, which have taken a severe beating during the last two decades.
I will also advocate that the official language be English and that Sinhala and Tamil be recognized as link languages on the same footing. Those who may oppose that proposition should read the books of Lee Kuan Yew. By retaining English as the official language, he equipped Singaporean citizens to compete with the global workforce. In Sri Lanka, graduates find it difficult to secure employment in the private sector due to a lack of fluency in English, which is the working language in banks and most private corporates. A new constitution must call upon the State to protect and foster all religions - Buddhism, Hinduism, Islam, Christianity, et al – en par.
One of the fundamental Buddhist philosophies is equality. I believe it was in the Sutta Nipata, that the Buddha taught two quarreling groups of Brahmins that all people were equal. And if we are all equal, then there is no justifiable rationale to place one religion over the other in a diverse land like ours. I believe the ‘Aragalaya’ showed the nation that whether one is Buddhist, Hindu, Muslim, or Christian, we all aspire for the same thing - a peaceful and trouble-free existence, and when that is deprived, our pain and suffering are the same.
Perhaps the silver line in these dark days is that for the first time ever in my memory, people of all ethnicities and religions have stood together protesting against the same forces. People have hopefully realized through this suffering that we are all the same and in Buddha’s own words there are no discernible differences amongst humans. I hope that sense of unity continues and permeates into all nooks and corners of the country. I do hope that it does not fall by the wayside once this is all over and people will go back to their old habits of “us” and “them”.
By Anusha David