Justice delayed, but not denied : | Sunday Observer

Justice delayed, but not denied :

1 September, 2019

A judgment delivered by the Supreme Court last week into a decade old fundamental rights petition filed by two police officers acted as a dark trip down memory lane, reminding the country of an era when the Rajapaksa family enjoyed an unfettered monopoly on state resources and personnel, even to deploy them on election campaign activities with impunity.

The case, filed against the state by two police officers, M.S.K. Wickremanayake and D.C.P. Kumarasinghe shortly after the 2010 presidential election, touches on many of the most abhorrent election abuses of the pre-2015 government, from the use of the military to distribute election propaganda, to the ability of political appointees to puppeteer the police, the grave consequences that awaited any law enforcement officer who dared to act with independence, and the inability of the judiciary to serve as a speedy forum for redress.

The Supreme Court bench determined that just a few days before the 2010 Presidential Election, two ordinary police officers were penalised for executing their official duty by being transferred out of Kurunegala for trying to stop election abuses. The Supreme Court judgement, delivered on Tuesday (27) recognised the duo for upholding the law of the land and declared that their Fundamental Rights under article 12(1) of the Constitution has been violated.

Justice Preethi Padman Surasena, with Justices Prasanna Jayawardana and Vijith Malalgoda concurring, appreciated the independence portrayed by the two cops. In their judgement,the Court remarked that “this is a fit occasion to commend the forthrightness displayed by the Petitioners even in the face of the aforementioned adverse circumstances. There is no doubt that they had undergone a difficult time for mere upholding the rule of law in the country.”

Kurunegala Headquarters Inspector (HQI) M. S. K. Wickremanayake and Officer in Charge of the Administration Department (OIC admin) D. C. P. Kumarasinghe, who were subsequently transferred on “exigency of services”, had petitioned the Supreme Court for a declaration that their Fundamental Rights under article 12(1) was violated.

HQI Wickremanayake and OIC Kumarasinghe both attached to the Kurunegala police station at the time of the incident. On January 23, 2010, two days before the presidential election, the Kurunegala police received a tip off that a lorry owned by the Navy was on its way to Kurunegala carrying counterfeit ballot papers. The tip, from attorney FelicianPerera, included the license plate number of the lorry. The petitioners had moved swiftly to set up a roadblock to intercept the vehicle.

At the sight of the roadblock put up by the police team the navy truck took evasive manoeuvres, turning onto a byroad in Wehara to avoid it. OIC Kumarasinghe then walked towards the vehicle and demanded to search the vehicle. He found posters slandering the opposing Presidential candidate General Sarath Fonseka and several crates of local liquor. The posters did not contain the name and address of the publisher,as mandated by election campaign laws, and thus constituted illegal propaganda under the Presidential Elections Act.

Upon informing HQI Wickremanayake, the vehicle and its occupants, (uniformed and armed Navy personnel),were detained and then taken to the Kurunegala police station.

A person named Prabath who identified himself as a coordinating secretary to the President had intercepted the truck, which was on its way to the police station and demanded that it be released. Kumarasinghe, who didn’t give way to political threats, continued to take the vehicle to the police station when he received a phone call from the Kurunegala Senior Superintendent of Police (SSP) Vaas Gunewardane, ordering him not to take the truck to the police station.

According to the case record, Kumarasinghe disobeyed the order from Vaas Gunawardena, and the truck was eventually taken to the police station and the illegal material was seized.

While the liquor crates and posters were being unloaded at the police station then Minister Shantha Herath had come to the police station with a crowd, and UNP heavyweight Gamini Jayawickrema Perera also had come to the police station. SSP Vaas Gunewardena approached the truck, and ordered the police officers who had unloaded the posters and liquor to put them back in the truck.

According to persons familiar with the original tip off given to the Kurunegala police, the illegal ballot papers were believed to have been kept below the floorboards of the truck. However, the police officers never got the chance to check whether in fact there were hidden illegal ballot papers below the floorboards or not, because of the events that would follow.

The purported Presidential coordinating secretary named Prabath, who had also by that time come to the police station, had then threatened OIC Kumarasinghe saying “you are the one who is responsible for all of this you wait and see you will face the consequences after the 26th (the day after the election)”.

Both the HQI and SP Nagahamulla of the Kurunegala police station who came to the place had urged the crowd gathered not to interfere with the rapidly developing investigations.

When the OIC and the HQI had refused to release the vehicle and the items in it claiming that they are productions of an illegal activity, SSP Gunewardena had retaliated asking them to follow his orders as he is the SSP of the division. The OIC had attempted to take the key of the vehicle into his custody when Vaas personally interfered and took the law into his own hands, snatched the key ad gave it to the navy personnel, releasing the vehicle, its occupants and contraband liquor and defamatory posters without stopping them.

Anura Senanayake who was at that time Election DIG had then entered in the log book maintained at the police station, that he, when he inquired from the IGP, had been informed that as per the Attorney General’s advice nothing illegal had taken place and therefore he had advised the SSP to release the truck. He further notes in the logbook that when SSP Gunewardena was trying to carry out the IGPs lawful order, the two police officers, the Kurunegala HQI and the Admin OIC had obstructed him, amounting to insubordination.

SSP Gunewardane asserts this in his affidavit provided to the Supreme Court, however court in the judgement states that they will only treat it as hearsay as the IGP has not corroborated his claim.

At the conclusion of the January 2010 Presidential Election,the HQI and Admin OIC were transferred out of the Kurunegala Division, “on exigency of services, namely for the smooth functioning of the Police service within the SSP’s Division.”

This happened even after the inquiring officer, subsequent to the disciplinary inquiry held against the Petitioners for alleged insubordination, had exonerated the Petitioners from all the charges framed against them. This is despite the admission by both officers that SSP Vaas Gunawardena had repeatedly ordered them, illegally, to release the navy truck, its contents and occupants, but that they had refused to do so.

The judgement, which methodically sets out the sequence of events, arrives at the conclusion that there was “sufficient material and justifiable grounds for the Petitioners to arrest the three Navy personnel who had been concerned in a cognizable offence. Thus, the Petitioners had performed their duty well within law. Their actions are nothing but what the law of the country had expected of them.”

The judges further state that SSP Vas Gunwardane and DIG Anura Senanayake have acted in violation of the law. Ten years after this incident, fate has caught up with both Gunawardena and Senanayake. Gunawardena is on death row, having been convicted by a trial-at-bar of running a contract killing squad that included his son and police officers under his command. Senanayake has been indicted for his role in sabotaging the investigation into the 2012 murder of rugby player Wasim Thajudeen.

The judgement identifies that at the time of the incident the 17 Amendment was in effect, and the law thus empowered the Election Commission to prohibit during the period of an election, “the use of any movable or immovable property belonging to the State or any public corporation”.

This could have been done by a direction in writing by the Chairman of the Commission or of the Commissioner General of Elections on the instruction of the Commission. Once such a direction is made, every person or officer in whose custody or under whose control such property is for the time being, was duty bound to comply with and give effect to such direction. Accordingly, during this time such a notification had been issued by the Elections Commissioner.

Further, the above facts disclose clearly that the transfers of the two police officers affected soon after the presidential election on the guise of ‘exigencies of service’ have been affected arbitrarily, illegally and for collateral purposes, and were therefore ab initio void, the court found.

“This Court is of the view that the 1st Respondent and the 3 rd Respondent in the given situation had acted arbitrarily, outside the law and had violated, the fundamental rights guaranteed to the Petitioners under Article 12(1) of the Constitution and further declare that the purported transfers of the Petitioners are illegal and hence null and void.”

Court further directed that the Petitioners must be deemed for all purposes to have continued to be in service in the ranks they were respectively holding at the time of this incident without a break in service,ensuring that they are entitled to all the arrears of their salaries and allowances as well as benefits, increments, promotions.

“This Court also directs the Inspector General of Police and the Police Commission to take necessary suitable steps to redress any disadvantage, which may have accrued to the Petitioners regarding their promotions due to their being unlawfully subjected to disciplinary proceedings relating to this incident,” the judgement read.

The icing on the cake was that the Supreme Court also ordered that the petitioners be paid compensation of Rs. 1,000,000 each, out of the pockets of then IGP Mahinda Balasooriya and Vaas Gunawardena, Senior Superintendent of Police – Kurunegala.

The Centre for Monitoring Election Violence (CMEV) says the judgment was a breath of fresh air for independent police officers.

Speaking to the Sunday Observer National Coordinator for CMEV, Manjula Gajanayake said that elections in the country about a decade back were problematic as malpractice and vote rigging were common, but this culture had changed since 2015.

Since adjudication of election related incidents take so long – in this case nine years – the CMEV has made a request to establish a separate court to handle election related issues and consider election petitions.

This judgment from the Supreme Court, albeit nearly a decade after the event, and the guilty verdict in the trial offormer Presidents Secretary Lalith Weerathunga for use of public property for elections campaigns,are both seen as positive steps. Before 2015, police officers were routinely obstructed and dissuaded from enforcing election laws, but lately police have been more progressive in standing up to and punishing such crimes.

“During election times there are many officers who act independently. But, after the election if they have acted against any individual who is in the new government they are marginalised and fall victim to political revenge,” he said.

Gajanayake pointed out that at the time this incident took place, the Police Commission was not in existence to look into retaliatory actions against honest police officers.

“We see this judgement as an exemplary judgement. Any police officer in the country can now use this judgement against such unfair acts against themselves,” he emphasised.

This was only one case among hundreds that have never been filed by police officers wrongfully punished for refusing to follow illegal orders, the CMEV noted. “Not everyone can stomach the pressure of filing and maintaining court action against their superiors,” Gajanayake added.

For Wickremanayake and Kumarasinghe, justice has been served and their careers redeemed after nine years of being sidestepped, interdicted and passed up for promotion and recognition. For them to become an example for the police force at large, it is up to Police Headquarters and the Police Commission to take steps to ensure that in the future it does not take a decade for honest officers to be redeemed, and that when redemption comes, the reward is worth the wait.