Pause on persecution

The Court of Appeal (CA) has delivered a stinging rebuke against the prolonged detention of former CID Director Senior Superintendent of Police Shani Abeysekara when it ordered the High Court of Gampaha to release him on bail immediately. 

As SSP Abeysekera languished in prison for nearly 11 months, there was increasing certainty that his incarceration was part of a targeted persecution against the much-respected police officer who had supervised high profile investigations into major human rights cases. 

Last Tuesday (15), the second highest court in Sri Lanka confirmed those fears.

In his bail order, Justice Bandula Karunaratne called the allegations against SSP Abeysekera a “result of falsification and embellishment, and a creature of after-thought.”

In other words, upon perusal of evidence gathered against SSP Abeysekera during the course of a lengthy police investigation, the learned judges of the Court of Appeal observed that the former CID director had been deprived of his liberty for almost a year on highly spurious charges, that smacked of an attempt to cause him prejudice and harm.

The landmark CA order will go down in the annals of Sri Lankan history. Not only was it a much-needed intervention by the judiciary to stop a political witch-hunt in its tracks, but it has also served to highlight the tremendous lacuna in application of the law on arbitrary detention and the issue of granting bail to suspects. 

The guiding principle of the Bail Act of 1997 is that bail is the norm, except in extraordinary circumstances. In its Order, the Court of Appeal cites the Supreme Court of Sri Lanka which has upheld the principle ‘bail is the rule, jail is the exception’ on numerous occasions. These judgments are in line with guarantees enshrined in the Sri Lankan constitution, the Code of Criminal Procedure Act and Sri Lanka’s international obligations under the International Covenant on Civil and Political Rights (ICCPR).

In its order granting bail, the Court of Appeal was also critical of the lower courts, observing that the Police had no evidence to credibly establish a semblance of a prima facie case against SSP Abeysekera. The Order said the power to grant bail was exercised sparingly by lower courts, forcing suspects to remain in jail for prolonged periods without trial. Abeysekera was previously denied bail by the High Court of Gampaha, despite his lawyers presenting evidence that he had suffered a heart attack after contracting COVID-19 in prison. 

The Court of Appeal Order also raises serious questions about the role and independence of the Attorney General. For 11 months, the AG’s Department has played along with a flimsy investigation against Shani Abeysekera launched by the Colombo Crimes Division (CCD). It did so despite the allegations against SSP Abeysekera pertaining to a murder case the Department itself had successfully prosecuted in 2016, based on a CID investigation. On the evidence led by the AG, a High Court Trial at Ba, convicted the accused, DIG Vaas Gunewardane. Witnesses in that trial came forward six years after the fact, to accuse Abeysekera, who had investigated the murder, of fabricating evidence. 

The Court of Appeal noted that this “extraordinary delay” on the part of the complainant witnesses, “smacked of the introduction of a fabricated, false version and an exaggerated account or concocted story involving a set of collaborators or conspirators.” The observation begs the question, what prevented the Attorney General from drawing the same conclusions upon studying the merits of the case against SSP Abeysekera? Instead, the Attorney General chose to be a willing accomplice to a police investigation that the country’s second highest court has now slammed as a blatant attempt to frame Abeysekera.

The Court of Appeal order last week should give the Department pause. SSP Abeysekera’s bail order vindicates local activists, victim families, the United Nations and the European Parliament who have all viewed the imprisonment as a reprisal against his work. With a new occupant in the office of the Attorney General looking to turn the page, it is past time for the Department to take stock, and decide if it will remain a willing instrument in what appear to be political witch-hunts against government critics and perceived enemies.