Remand Is Not a Verdict

Sri Lanka wants corruption punished. It should. But there is an important difference between prosecuting corruption and allowing arrest and remand themselves to become punishment. The distinction applies to Namal Rajapaksa today precisely because it must apply to everybody tomorrow.

There is something profoundly satisfying to a public battered by decades of allegations of corruption when somebody powerful is finally arrested.

That satisfaction is understandable. It is also dangerous.

Namal Rajapaksa is in remand custody following his arrest by the Commission to Investigate Allegations of Bribery or Corruption. CIABOC alleges that approximately Rs 100 million connected to money flowing from the SriLankan Airlines Airbus affair ultimately reached him through businessman Nimal Perera.

It is an allegation of considerable seriousness and it deserves investigation with equal seriousness. If the evidence establishes that corrupt money reached Rajapaksa and that he knowingly received it, neither his surname, political office nor family connections should provide a millimetre of protection.

But precisely the same principle operates in the opposite direction.

An arrest is not a conviction. A remand order is not a judicial declaration that the allegation is true, and the refusal or restriction of bail cannot legitimately become an advance instalment on a sentence which no court has imposed.

This matters far beyond Namal Rajapaksa.

Sri Lanka has developed an unfortunate public culture in which the arrest itself is sometimes treated as the triumph. Television cameras wait outside investigative agencies, photographs of suspects being taken to court race across social media and political supporters on either side decide within minutes whether justice has been served or political persecution has begun.

Neither conclusion necessarily follows.

The purpose of an investigation is to discover whether evidence establishes an offence. The purpose of a prosecution is to put that evidence before a court. The purpose of a trial is to determine guilt or innocence according to law.

The purpose of remand is not to satisfy public anger.

That distinction becomes particularly important when the person being investigated is a politician. Governments inevitably investigate people who belonged to previous governments, particularly following a change of administration promising to confront corruption.

There is nothing inherently sinister about that. Indeed, refusing to investigate somebody because he belongs to the political opposition would itself be an extraordinary corruption of the rule of law.

But State power must be capable of answering another question. Why is custody necessary?

In the present case, the alleged transactions occurred more than a decade ago. Rajapaksa appeared before CIABOC when summoned and submitted himself to hours of questioning before his arrest.

There may be entirely proper reasons why investigators considered arrest necessary at this stage. There may be recently obtained evidence, concerns involving witnesses or material not yet before the public, while the Anti-Corruption Act itself contains provisions affecting bail in particular circumstances.

Those matters belong before the courts.

But asking the question does not amount to defending Namal Rajapaksa. It amounts to defending a principle which becomes considerably more valuable when the person standing in the dock is someone we dislike.

Liberty cannot depend upon popularity.

Nor should the presumption of innocence be reserved for ordinary citizens while being withdrawn from politicians because the allegations against them are politically attractive.

The opposite danger is equally real. Political office cannot become armour against investigation.

Sri Lanka has seen far too many investigations begin spectacularly and disappear quietly. Files have moved between institutions, governments have changed, witnesses have forgotten, suspects have become allies and public outrage has moved on to the next scandal.

That cannot be the alternative.

The Airbus affair deserves to be pursued to its end. The alleged money trail should be followed account by account. Nimal Perera’s evidence should be tested, banking records examined and every person implicated given an opportunity to answer the evidence against them.

If that trail establishes criminal wrongdoing, prosecute it.

But prosecute it properly.

Justice is not measured by the number of famous people placed in remand custody. It is measured by the number of cases in which competent investigators gather admissible evidence, prosecutors present it fairly and independent courts determine guilt or innocence within a reasonable time.

There is a larger institutional interest here too.

CIABOC’s credibility will not ultimately be established by whom it arrests. It will be established by whether its investigations withstand scrutiny in court.

The Government likewise has an interest in ensuring that anti-corruption enforcement cannot reasonably be mistaken for political theatre. That requires independence not merely in name but in process, consistency and outcome.

The SLPP has already alleged political motivation in Rajapaksa’s arrest, particularly because it occurred days before its Anuradhapura rally. The proximity is politically convenient for that argument, but proximity is not proof.

The Airbus investigation predates this Government by years. That fact must carry just as much weight as questions about timing.

Sri Lanka should therefore resist the invitation to choose between two simplistic positions: that Namal Rajapaksa must be guilty because he has been arrested, or that he must be a political victim because he belongs to the opposition.

Neither proposition has been established.

There is only one standard worth defending. Investigate without fear, prosecute without favour, grant every accused the protections of the law and punish those whose guilt is proved.

Today that standard protects Namal Rajapaksa from prejudgment.

Tomorrow it may protect somebody with no famous surname, no President for a father, no lawyers waiting outside court and nobody on social media demanding justice on their behalf.

That is why it matters.

Be that as it may.