The Sunday Leader

Question-Mark Over FCID

By Waruni Karunarathne

Questions have been raised related to the entire establishment of the Financial Crimes Investigations Division (FCID) which was set under the Sri Lanka Gazette notification 1901/20 dated the 13th February 2015.

Recently, Nawa Sihala Urumaya Leader Sarath Manamendra, Jayantha Kulathunga and ex-Janatha Vimukthi Peramuna (JVP), Gampaha District leader Victor Ahangama filed complaints at the Human Rights Commission of Sri Lanka (HRCSL), claiming that the FCID was arbitrarily and illegally established. Previously, writ applications were also filed against the FCID by Elle Gunawansa Thero and Professor Carlo Fonseka seeking an order to suspend the operation of the gazette notification. Some cases in this regard are still pending in the Supreme Court.

The FCID was established under the Police Department to investigate corruption and frauds that took place during the last regime. However, according to the complainants, the FCID is tasked to investigate complaints forwarded to it by the secretariat established by the cabinet subcommittee which is headed by the Prime Minister. Therefore, according to them, the division may be partial when choosing complaints. According to the gazette notification, the FCID has the powers to investigate within all jurisdictions in Sri Lanka which mean the FCID has extraordinary powers to investigate cases. However, the complainants observed that the FCID is not an independent division since they simply cannot decide on which complaints they should investigate.

Speaking to The Sunday Leader Nawa Sihala Urumaya leader and former presidential candidate Sarath Manamendra said that the FCID has violated the rights of Sri Lankans by preventing their access to legal system because the FCID does not accept complaints by anybody but only the ones forwarded by the Prime Minister’s office. The Sri Lankan constitution has provisions to protect the equality of all citizens in the country and give them equal access to law establishments, he stressed.

“In other words, the Prime Minister has the say as to what complaints will be forwarded to the FCID. They have been clearly targeting those who are against the Prime Minster and the UNP government,” he alleged.

Manamendra added that the FCID is involved in a witch-hunt targeting the Rajapaksa family and his supporters just to cause them harassment. “We wanted to lodge a complaint about the Treasury bond issue, but the FCID did not accept it,” he added. He noted that preventing the citizens from complaining to the FCID violates the rights of the people and therefore they demand the HRCSL to investigate the matter.

Ex-JVP member Victor Ahangama told The Sunday Leader that the FCID was established under a cabinet subcommittee which comes directly under the Prime Minister. Therefore it does not have enough freedom to investigate any complaints but only the complaints that are forwarded to them by the sub-committee. He also accused Prime Minister of carrying out activities of similar nature during the youth uprising in late 1980 where a set of people were targeted and tortured.

“Besides, the Prime Minister heads the cabinet subcommittee. The President has not given advice to establish the FCID. And Ranil Wickremesinghe has not received a mandate from the people to be the prime minister. How can there be a cabinet subcommittee under somebody who has not received a mandate from the people to be the prime minister?” he questioned.

Legal Secretary of the HRCSL Nimal Punchihewa told The Sunday Leader that the HRCSL has started investigations into the complaints about the FCID. He however added that there is already a case in the Supreme Court against the FCID and therefore they intend to only call for reports for the moment. “When there is a Supreme Court case we do not go ahead at once. However we will call for a report asking the IGP what are the legal provisions given to them to operate the FCID,” he added.

Meanwhile, speaking to The Sunday Leader, Minister of Justice Wijayadasa Rajapaksa said that no separate or special category of law required establishing a unit under the Police Department. “They have established the FCID under the Police Department for their convenience. Like VIP Special Crime Division or the Traffic Division, they have set up that unit for a specific purpose. There are so many such divisions in the police. It is only an internal arrangement. Powers are the same,” he explained. According to Minister Rajapaksa, his understanding is that anybody can lodge complaints with the FCID just the way anybody lodge a compliant with the CID or police. He explained however that CID and Police is established for the general public but not for a special category whereas the complaints accepted by the FCID should contain matters related to certain financial crime – and the FCID will consider those complaints and investigate them accordingly. He added that if FCID feels a case a different kind of crime then they can refer it to a different division – either to CID or to other special investigation divisions. “Anybody can lodge complaints to the FCID. It is wrong to say that only the cabinet subcommittee can direct complaints. I do not know the exact internal arrangement they have made. To my knowledge, various other parties have lodged complaints to the FCID and they are now investigating those complaints,” he noted.

Attorney at Law and human rights lawyer Dr Prathibha Mahanamahewa said, since there are Supreme Court cases pending on this issue, the HRCSL is not pursuing those complaints at the moment. However he added that there are various arguments on the establishment of the FCID and whether it is legal should be decided by the Supreme Court of Sri Lanka.

According to him, one question is whether the FCID was formed under police ordinance and only by the Inspector General of Police (IGP). “If they want to establish a new division it has to be formed by the IGP. Right now, there are about 54 investigation divisions in the Sri Lanka police and these units were established by the IGP and not by any cabinet subcommittee. The question is whether the Prime Minister and cabinet have a role to play in the new division and whether all the cabinet members including the President and Prime Minister were there when the decision was taken to establish the FCID. The President is the head of the state and the Cabinet. He has to be there to take such decisions,” he explained. He however added that his argument is whether this division has a retrospective effect and whether it can be retrospectively applied. He said the other argument is how complete is the FCID. “They say there is a cabinet subcommittee and through that subcommittee only financial and other fraud cases can be submitted. The next question is whether there is an opportunity for anyone to submit a complaint to the commission like the way anybody goes to the Bribery Commission. Can individuals submit complaints to the FCID?” he asked.

Mahanamahewa also pointed out that there are arguments in favour of the FCID. According to them, it is formed by a cabinet decision and the question about whether it was gazetted by the Ministry of Public Order is there – but the mandate of the FCID is clear – it is to investigate various crimes including abuse of state resources, money laundering, misuse of powers and treat to national security – some are financial but some may not look like financial matters. “In general, CID is there to look into various crimes and they can continuously do that task. In the mandate of the FCID, they say it is established to investigate misuse of official powers – is it financial or non financial? When it comes to threats to national security, then again there is Terrorism Investigation Division (TID) to counter terrorism. However, those offences are there in the penal code. So even though they set up the new unit under the cabinet subcommittee, it is valid because now it is under IGP. However, there is a question again as to if it is functioning dependently. Therefore they have to see whether it was directly set up by the IGP and not by the cabinet,” he added.

He also explained that in 1964 there was an attempt to topple the government and parliament passed a special act to punish those who were involved in this coup. “Despite the general law they passed a special one to punish these people and the Supreme Court gave the death penalty to those involved. Before 1972, there was the Privy Council in Sri Lanka and these people appealed to it which was the highest court at the time. Since there were general laws to take actions against those people, the Privy Council saw passing a special law through the parliament to punish these people was a violation of their rights. So the death penalty was nullified,” he explained. According to Mahanamahewa there are various legal arguments to this issue and the Supreme Court will take the right decision.

 

2 Comments for “Question-Mark Over FCID”

  1. rita

    Some people speak through their ass

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