UNF should make good on their accusations By Mass L. Usuf

[Mass Usuf]

UNF should make good on their accusations

By Mass L. Usuf

http://www.ceylontoday.lk/news-search/USUF/print-more/20410

 “Every person shall be presumed innocent until he is proved guilty,” states Article 13(5) of the Constitution. This presumption of innocence enshrined in Chapter III, under fundamental rights, is a legal principle traditionally expressed by the Latin maxim ei incumbit probatio qui dicit non qui negat (the burden of proof is on the one who declares, not on the one who denies).

The President, before 8 January 2015, was literally parroting on his presidential campaign stages the unprecedented level of nepotism, corruption, and financial crimes of the Rajapaksa Government. Accusations of diverse categories were boldly made. Revelations of the loot of the wealth of this country being stashed in offshore jurisdictions shook the conscience of the citizens. This trend took centre stage again in August the same year, when general elections were announced. The same music was played in a renewed tone. A long list of purported crimes and the various alleged perpetrators were openly publicised at several election meetings held islandwide.

Unfair and unethical

These accusations have been going on for the past three and a half years. It is unfair and unethical to accuse a person with the intention of maligning him or her. Political opportunism has always been one motivating factor for such malicious activities. To make wild allegations, without providing substantive evidence is unreasonable, and is morally unacceptable. Doing so manifests not justice, but political decadence.

Civil society organisations besides others have just concluded a battle against the appointment of Mahinda Rajapaksa as Premier and the hasty gazette notification dissolving Parliament. Both acts were committed by the Executive, President Sirisena and were undone by the Judiciary and the Legislature, a fitting tribute to the doctrine of separation of powers. While these were, undoubtedly, priorities, other matters of equal importance had been postponed time and again. Now, the time has come, though belatedly, to turn attention to the numerous crime allegations made by President Sirisena and the present government from 2015 onwards, accusing several people.

Holding the Executive responsible

The Executive Branch, which includes the Government in power, is responsible for this lapse of making good their accusations. Once these people come to power, they lose track of the source that propelled them to their seats. They must realise that the positions given are with a singular purpose and, that is, to exercise the sovereignty of the people. Not acting in the proper and efficient exercise of the sovereign rights of the people will be a dereliction of the duties of the Executive Branch and the Government.

One such exercise is prosecuting those who have looted the country, irrespective of whether it was during the last regime, or the current one.

In this context, the investigation and prosecution, if there is substantial evidence, of the alleged perpetrators of the various crimes must be done without any further delay and political gimmickry. If there is no evidence against such people to prosecute them, it is incumbent upon the politicians to stop accusing people all the time. Supreme is the notion that man should not rule over man, but it is the law that should rule over man.  

Beginning from the Head of the Executive, the President, the Prime Minister, the subject ministers, the Attorney General’s Department, the Inspector General of Police, the Criminal Investigation Department, the Financial Crimes Investigation Division, and the other relevant institutions should be held responsible for the delay. The public is confused and questioning if these institutions are, individually or collectively, deliberately not acting or by design delaying acting or inefficiently acting. This state of affairs cannot continue and the masses cannot be fooled all the time. It is often announced that investigations have been started. If that is so, then finish it fast without keeping the accused and the general public in a never-ending cycle of suspense. In criminal law, guilt of an accused must be proven beyond reasonable doubt in a Court of Law. However, those accused have been tried at the many election platforms and press briefings and guilt pronounced. This is against the fundamental rights of those being accused. It is good to remind at this point that democracy is no guarantee for the implementation of the rule of law where there is corruption.  

Clergy and soldiers

The law-abiding clergy is always revered and respected without any doubt. In the same view, memories of the brave soldiers who played the heroic role of ridding this country of terrorism are indelibly etched in our minds.  We salute them and are grateful to them.  These sentiments, however, should not be confused or mixed up with a monk or soldier who violates the law. It was incredible to hear the President recently voicing his concern over the investigation or prosecution of Buddhist monks and soldiers.  

To be complacent in the face of such irresponsible statements, would be equal to remaining silent when the integrity of the law is being challenged. It encourages those who can influence the authority of government to vicariously use such power or authority for the benefit or advantage of a particular person, entity, religion, or ethnicity.  Are the clergy and the soldiers above the law of this land? Or, is it that the President was stage managing his statements to receive populist support for his existence and continuation?, the general public questions. One of the central features of the rule of law is the equality of all under the law. The 1978 Constitution reads:

Article 12(1) “All persons are equal before the law and are entitled to the equal protection of the law.”

This notion of equality before the law holds that no ‘legal’ person shall enjoy privileges that are not extended to all. And, that no person shall be immune from legal sanctions be it a politician, Buddhist monk, a soldier, or any citizen. Equality would also demand that the application and adjudication of legal rules by various judicial officials are impartial and consistent across equivalent cases. No consideration given whatsoever, of a discriminative nature, for the class, status, or relative power among disputants.

The people who are the sovereign in this country should not permit the corruption of the law to serve as a tool for the benefit or advantage of a particular person, entity, or position. The principle of the rule of law takes prominence in checking the abuse or corruption of the use of power or authority through the norms of morality, predictability, independence of the judiciary, natural justice, and by not permitting the discretion of crime prevention agencies to pervert the law.

Stop accusing and start prosecuting

The various problems cited for the delay in prosecution from early 2015 onwards include lack of staff in the Attorney General’s Department, inexperienced financial forensic experts, the already congested Court system, the shortage of Courthouses, and so on. What the public has been witnessing is the sensationalised drama of interrogations, arrests, impounding of passports, those in detention brought to the Courts in ambulances, bail applications made, release from remand, and permission granted to travel. Statistically, there is a wide gap between the number of suspects indicted or prosecuted, compared to the number of complaints and investigations that have been undertaken. Critics say the authorities have been slow to act in some cases, and in others they do not want to act.

The people, who have sovereignty, must demand from the President and the Government to stop accusing people and start prosecuting them, if they have done any wrong. This should apply to those in the previous regime and the present regime.  Justice is foremost. The rule of law must prevail. It is our duty to make it happen.