When the Supreme Court found politicians (three Rajapaksa brothers) and senior officials including two former Governors of the Central Bank responsible for the damage caused the 2021-2022 economic crisis many were unhappy. They wanted the persons found culpable jailed, fined, and otherwise punished. Former Minister Keheliya Rambukwella was recently ordered to pay LKR 75 million and four officials LKR 50 million each in a case initiated by Transparency International. The unhappiness appears to have dissipated. But there are many worrisome implications that all who care about the rule of law and good governance must understand and act upon.
In the aftermath of the 2023 judgment against the Rajapaksas, I explained that this decision emerged from a fundamental rights application under Article 17 of our Constitution. Such cases are not decided on a preponderance of evidence. I agreed with the assignment of responsibility in the carefully crafted decision by a seven judge bench headed by the then Chief Justice Jayantha Jayasuriya
The basic principle of justice is that punishment in the form of imprisonment or capital punishment can be meted out only after the wrongful act has been proven beyond reasonable doubt. The ability to cross-examine witnesses and otherwise assess the veracity of evidence is central to a trial that can result in the infringement of an individual’s liberty. These common law principles are set out in broad terms in Article 13 of the Constitution.
Even when those conditions are satisfied, there must be an opportunity to appeal, to have a different set of judges apply their minds to the charges and the evidence and affirm or modify or reject the first decision. FR cases are heard by the Supreme Court based on written submissions and affidavits, with no opportunities to cross examine witnesses. I explained that it was not proper or possible to jail persons found culpable of violating fundamental rights.
When does compensation become a fine?
In the judgment that found the three Rajapaksa brothers and others culpable (SCFR 195/2022), the court did not impose financial penalties stating that the petitioners had not asked for them. Yet, there is a body of law that has developed since the 1980s that decisions on FR violations can include compensation being paid to victims by the State and by the persons violating the rights.
The 1983 judgment in Gunawardene v Perera was perhaps the first instance of the court ordering payment of compensation (LKR 2,500, a token amount even then) to the aggrieved party, Ms Vivienne Gunawardene. By the 2000s the courts were awarding substantially larger amounts (for example, LKR 800,000 and medical costs to a torture victim). Around this time, the practice of ordering the government officials found to have violated fundamental rights to pay compensation out of personal funds began.
The amounts reached stratospheric levels with the Easter Bombing case. Here, a seven-judge bench of the Supreme Court ordered a Victims Fund to be established at the Office for Reparation to award compensation in a fair and equitable manner to the victims and their families. The Court directed former President Maithripala Sirisena, former IGP Pujitha Jayasundera, former Secretary of Defence Hemasiri Fernando, former Chief of National Intelligence Sisira Mendis, and the head of the State Intelligence Service Nilantha Jayawardana to pay Rs. 100 million, Rs. 75 million, Rs. 50 million, Rs. 10 million, and Rs. 1 million respectively to the Victims Fund.
It is one thing to order a police officer to pay compensation that is in the range of his monthly salary. It will hurt, but necessary for meaningful compensation that will prevent repetition and deter others from engaging in actions violative of fundamental rights. The millions being ordered now cannot conceivably be paid by normal government officials and even by normal politicians, whose wealth may be ascertained from their asset declarations under the old law. This would be easier under the new provisions in Act No. 9 of 2023. One must have extremely rich relatives and/or generous friends to pay these amounts. Or there will be questions as to whether the money came from illegal activities, including proceeds of bribery and corruption. Not paying what the Supreme Court ordered may send one to jail. Paying may result in investigations under the Anti-Corruption Act, No. 9 of 2023, and a jail term after investigation.
If the failure to pay the ordered amount lands one in jail (this has not happened yet), the line between criminal proceedings with a higher burden of proof (“beyond a reasonable doubt”) and civil proceedings (“on a preponderance of evidence”) would have been crossed. Should this not be a matter of concern to all who care for the rule of law, including legislators and judges? Should we at least amend the Constitution to allow FR cases to be heard by the Court of Appeal so that an appeal is possible to a higher court? Should the burden-of-proof standard be tightened? Should there be some calibration of the compensation amounts and some guidelines to prevent the judges from awarding excessive compensation?
Double jeopardy and forum shopping
There is an ongoing criminal proceeding in the High Court on the procurement of substandard drugs, the same act for which former minister Rambukwella and the officials were ordered to pay compensation. Theoretically, they may be found not guilty under the higher burden of proof in a criminal trial. It would be one for the history books.
How likely is a not-guilty verdict on any or all of the 43 charges in the indictment, by the three judges appointed by the Chief Justice who headed the bench that ordered payment of the LKR 75 million and lower fines by the same respondents?
Why bother with the laborious process of indicting persons who may have infringed the law, arguing the case including cross examining witnesses, and then even if a guilty decision is reached go through one or two appeals? Why not just file FR cases with the help of Transparency International and avoid all that? The Attorney General’s Department can be freed up for other tasks because private parties can obtain justice without their involvement by taking the FR petition route.
-Prof. Rohan Samarajiva-