By Basil Fernando –
One Attorney General went into retiremand another was appointed. The reflections in this short article is not about the persons involved but the position that has been held and passed over. And also it is not about the specific position of the Attorney General but about the department that the holder of this office represents. Outgoing AG Mr. Dappula De Livera was reported as saying that on his retirement he was offered a diplomatic post but, he refused. Furthermore, if a suitable position to serve the country is offered, he would accept. Otherwise, he would set up in private practice.
Taking that statement on face value, it indicates that the former Attorney General is willing to enter into service of his country. The few suggestions that are made in this article are perhaps one of the most valuable services he could render. Giving to his country, to the department in which he has served for a long time (and was its head) to the legal system as a whole and thereby to the entire country.
It is well known that the time he had to serve within this department was not an enjoyable time at all. Nobody can choose the circumstances under which one has to live and function. In the circumstances under which he served in the Attorney General’s office was not a pleasant time. It is not the fault of any officer but it is a sort of pre-determined situation.
Therefore, when we say about the time that it was not a nice time, it means that it was not a nice time for the nation as a whole and all the public institutions including the Attorney General’s Department.
An issue that may be bothering many people now, and may bother many thinking people in the country in times to come, (particularly those associated with legal and judicial positions), would be: the questions as to what was the evolution of the Attorney General’s role over those years?
In the development of culture, in terms of larger historical events as well as institutional histories, the memoirs of the people who once served in these positions play a great deal. They explain and illuminate the nature of the developments taking place within a specific time frame. Numerous persons who served as Senior Judges or Attorney Generals or held high positions have left an enormous amount of literature in the more developed cultures. These writings have become a major reference for future generations. Particularly, the scholars in these fields and the field of Law and other related branches such as politics, social sciences and philosophy, draw a great deal of information and guidance in finding answers to the questions that bother them. This comes about through readings of various memoirs left by persons who had taken an honest and introspective look into their own experiences. These experiences of public servants are not completely private affairs. They are part of the storehouse of knowledge about what happened, how different forms of thinking around policies developed, where things went right and where things went wrong. Unfortunately, such literature is quite rare in Sri Lanka. Many of the biographies written about politicians are pure propaganda.They aim to promote a particular individual or a particular party or a particular perspective. No politician has left a critical analysis of the different things they had participated in for the next generation to sort out, struggle and deal with.
In the field of Law, the same thing is valid with a few, rare exceptions. Former Chief Justice Shirani Bandaranayake has left a memoir entitled “Hold me in contempt”– giving certain details and insights into the time she held office. Due to prevailing circumstances, some of these reflections and memories may be ignored. However, it is very likely, that a serious scholar looking into the tragedy of the Legal System of Sri Lanka, will find valuable sources of information and insights in her memoir.
Another person who left glimpses of the nature of the degeneration of Sri Lanka’s Legal System, (including the undermining of the independence of the Judiciary from within and from without), was the late senior lawyer S.L. Gunasekara. His condemnation of the system was far more ruthless and forthright. He minced no words when he came to describe the collapse of the system. For example, he quotes a senior lawyer of the time, telling him while watching the new Superior Court Complex under construction. “We built a new Parliament and lost Parliamentary democracy and now a new Court Complex is being built. And by the time it is completed, we will also lose the independence of the Judiciary. His book can be a guide to those looking into the history of the Institutions in our country.
There were others who left some glimpses of their insights in some form of writing. This could be Articles or comments made to other persons holding senior positions at that time.
In a memorial lecture for Kanchana Abhayapala, the former Attorney General, the late K.C. Kamalasabayason P.C. raised the following question “I will only pose a simple question. Is it more important in society to build roads to match international standards, spending literally millions of dollars, rather than to have a peaceful, law-abiding society where the Rule of Law prevails?” He made an attempt to raise the issue of the crisis of the Rule of Law in a limited way. Later, at the end of his term as Attorney General, he told the former lawyer, Deputy-Inspector General of Police, while pointing to the Hulftsdorp Court Complex, “I see here only buildings.” What he meant was that the outer structures of building complexes remained but the soul and the substance of them had been lost.
There are others who have left some memories in their speeches, for example, the late Chief Justice Neville Samarakoon. Disputes he had with the Executive were well known and there is some record of these matters. He wrote some personal letters to his former friends where he complained about the system’s failures. It was unfortunate that he did not leave a detailed memoir about everything that took place during his tragic period of tenure as a Chief Justice. If such literature were to be available, it would have produced a more enlightened debate on what has happened and what was to happen as a result of the things that started during that period.
Great judges, such as the former Justice Mark Fernando whose unhappiness with the manner in which the system was functioning was quite well known, did not leave his own memoirs to posterity. They would have thrown much light on the developments which had happened during his working life and thereby also thrown light on what is happening now.
The pronounced secrets about two of the most important institutions of any society, that is the Judiciary and the Attorney General’s department, remain as secrets. People carry to their last days and to their graves the kind of information and knowledge that only they are aware of. Of course, there may have been many reasons why they have done so. That is not the issue. The issue is that a great deal of knowledge that society is entitled to know has been buried.
Not revealing the secrets about the past, particularly those that led to wrong directions and even tragedy, is an irreplaceable loss.
It would be worthwhile, if the retired Attorney General would someday opt to reveal to the nation his own four thoughts about the Law, about the institutions dealing with the Law and Law Enforcement during his time and above all the manner in which a particular structural problem has hindered the delivery of Justice. This would be a greater service to the nation than anything else that could be done by someone holding office. One of the major questions that distresses the people, which became quite manifest in the Easter Sunday massacre of 2019, is about the link that exists between the Attorney General’s Department and the Criminal Investigation Divisions. The arrangement that prevails now is that there is a clear separation of investigation and the prosecuting function. In several of the Common Law countries, this division does not exist in the way it has existed in the 19th century or even the early parts of the 20th century. Thus, ensuring that investigations are conducted about crimes and that it is conducted within the framework of the Law is essential to the functioning of the Prosecutor’s role. If the investigation function fails, the ultimate result will be the same as what the former Attorney General in a letter to the IGP remarked about- a sense of adequate evidence to prosecute.
Inability to conduct prosecutions due to this structural problem which begins with the problems of the Criminal Investigation Division is a major problem that affects the administration of justice in Sri Lanka. If the quality of prosecution fails due to bad investigations, then the whole purpose of prosecution fails. And this is reflected by the overwhelmingly large number of failed prosecutions in the Official Record. Why do these things happen and what are the ways of overcoming these problems in order to give a meaning to the prosecutor’s function? This is a problem that will bedevil not only the administration of Justice but also the stability of society as a whole.
Where Prosecutors cannot play their role as expected in the terms of the Law and the norms and standards of the prosecutor’s office, then this is not a simple matter. It is a failure of great magnitude which has ominous results for the society.
These matters need explanations. Only those who have seen things from the inside can reveal the actual situations which give rise to these serious failures. Thus, the insider’s story is something that is essential to the life of society. What is meant here by insider story is not about scandals and gossip but about substantial issues that prevents the Public Institutions like the Attorney General’s department from performing the duties essential to the country.
Another sad aspect of prosecutions that are being carried out are the long delays. There are cases whereby the time a case comes to an end, there had been about 6 – 7 or more representatives of the Attorney General’s Department who had handled the files. There are instances that clearly indicates instances where the representatives that come from the department at a later stage are unaware of the many issues that arose in the early part of a trial which may have taken place some ten or more years earlier. Often, some unscrupulous Defense Lawyers misrepresent facts in the Courts, making use of these problems of memory, as a chain of individuals take the roles of others. In addition, within one trial there could also be several Judges hearing parts of the case; this makes for a fundamental absurdity in the whole process. It is a logical absurdity and a human impossibility of making judgements on such scattered evidence. In particular, when the behavior of many of the witnesses has not been seen either by those who come at a later stage or by Judges who come at much later stages.
Nobody today would doubt that the process of Fair Trial is in a serious crisis in the country. Seeing that the whole process of the Prosecutor’s Role is around the issue of fair trial, makes it a fundamental failure of the institution. Those who have held positions in these institutions have an obligation and the responsibility to inform and educate society about the things that have gone amiss.