15 November, 2018

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Attorney General’s Department Comes Under Serious Public Scrutiny

By Basil Fernando

Basil Fernando

Basil Fernando

The role of the Attorney General’s Department in terms of upholding the justice system in Sri Lanka, and rule of law is being critically examined from many quarters. The UN Special Rapporteur on the independence of judges and lawyers Ms. Monica Pinto severely critiqued the Attorney Generals’ Department in her Preliminary Observations and recommendations following her visit to Sri Lanka on 7th May 2016. Also, the UN Special Rapporteur against torture and ill treatment Mr. Juan E Mendez also examined the role of the Attorney General in terms of impunity and lack of accountability regarding the violations relating to torture and ill treatment as well as other human rights abuses. Meanwhile, the Anti-Corruption Fund (ACF) in a report bearing No 177 exposes how the cases that have been submitted by the Financial Crime Investigations Department (FCID), to the Attorney General’s Department are lying dormant at the Department as there are delays in taking action by the Attorney General’s Department. Meanwhile the Asian Human Rights Commission in Hong Kong has enumerated a series of defects of the Attorney General’s Department that obstructs the administration of justice and the achievement of rule of law in Sri Lanka.

Jayantha Jayasuriya - AG

Jayantha Jayasuriya – AG

Speaking about strengthening the independence of administration of justice the UNSR for the independence of judges and lawyers Ms. Monica Pinto, states “…The country needs to conduct a strict exercise of introspection, so as to improve the quality of its judiciary and of the Attorney-General’s office. This includes reviewing and publicizing the criteria for the appointment of judges and the causes for removal through disciplinary proceedings, providing quality legal and technological training, including mandatory training in international human rights law. “The judiciary is a national asset”, said one of my interlocutors. It is also a permanent institution, one of the three branches of the State, which has a fundamental role to play in a democratic society based on the rule of law; therefore it should be robust and efficient.”

Speaking particularly of the need for transparent, decentralised, and democratic approach to the administration of Justice, The UN Special Rapporteur, Ms. Monica Pinto, particularly points to the appointments of judges as well officers to the Attorney General’s Office. She states, “… The instances participating in the appointment of judges, counsels of the Attorney-General’s office and judicial staff should publish the selection procedure, including the criteria and methods to be followed.” In this regard she points to the role that the Chief Justice needs to play in these matters; “…The Constitution provides for the Chief Justice to head many instances dealing with administrative matters in the field of justice and this restricts very much his abilities to manage such an important branch of government.”

She points to the strict and rigorous recruitment process that is essential for justice systems of high quality. What she says with regard to judicial officers in this regard, can also equally apply to the recruitment to the Attorney General’s Office; judicial officers should be appointed when meeting personal and technical requirements and after competitive examinations held at least partly anonymously. They should be trained in technical matters, including the administration of tribunals or the analysis of complex forensic evidence, as well as in human rights law, including gender and women’s rights. The lack of known and established criteria regarding the appointment of judges will equally apply to the members of the Attorney General’s Department.

She goes on to point to the need of independent impartial and transparent institutions, and also points to the need for independence, impartiality, competence, due process as well as right to appeal a decision to a higher body as essential requirements of a proper disciplinary proceedings. Mentioning that transparency is an essential requisite of rule of law, she states “institutions in Sri Lanka, including those that are crucial for rule of law regime, are generally opaque” meaning that they are neither transparent (allowing all light to pass through) nor translucent (allowing some light to pass through). Referring to the Constitutional council, she states “the constitutional council should publish the rules of procedures it established for itself and applies in discharging its appointment functions as well as criteria used to evaluate candidates’ suitability for a given position. Such publicity would contribute to dissipating possible accusations of deliberate opacity and arbitrariness.” Speaking about the appointments to the Constitutional Council, which as of present is seven politicians and the remaining three civil society representatives, she states “To avoid the politicization of the appointment processes under the purview of the Council and to increase its legitimacy, this current composition should be changed so as to include more civil society representatives, including possibly representation from the Bar Association and academia.”

Specifically, on the Attorney General’s role, Ms Pinto goes on to state that “…The Attorney-General is also de Chief Prosecutor, and, as such replaced the position of the Independent Prosecutor which existed in the past. In such a capacity, the Attorney-General should issue clear and proper guidelines for the investigation and prosecution of crimes, specific guidelines could be developed for the investigation and prosecution of serious human rights violations, including torture, and violations of international humanitarian law. He should also monitor how cases are substantiated so as to avoid the delays incurred by his office. Even in ‘ordinary’ non-conflict-related and non-political cases, the Attorney-General’s office takes too much time to produce an indictment. This is but one of the reasons for the long judicial delays in the administration of justice in Sri Lanka and which court users of to endure.

“The Attorney-General’s office acts as the representative of the State, which by no means should be equivalent to defending the government. His office should also be able to make a neat separation between the State and the public interest they act on behalf of and the persons behind the institutions so as to avoid any possible conflict of interest. Such conflict of interest have arisen for instance in cases where the Attorney-General’s office appears in the defence of police officers or military officers in cases of habeas corpus applications, as if the court decides that the respondent are responsible for the crimes they are accused of, the same office would be called to prosecute them.”

Comments by UN Special Rapporteur against torture and ill treatment

Mr Juan E Mendez, UN Special Rapporteur against torture points to the fact that a modern accusatory system begins with affording more guarantees for the defendant. He states that ‘In it, the public prosecutor is first and foremost the guardian of legality. He goes on to state that “ … Prosecutors must enforce the law against criminals but should also actively prevent miscarriages of justice by way of torture and manipulation of evidence, and intervene early on in the process. The accusatory system is more conducive than the inquisitorial system for the respect for human rights; but in its modern form it gives a lot of power but also heightened responsibility to prosecutors.”

Mr Mendez, points out the importance of judges and prosecutors to upon the obligation to consider bail for lesser and non-violent offences and to ensure medical examinations by forensic doctors properly trained, by the “Manual on Effective investigation and documentation of torture and other cruel, inhuman, or degrading treatment or punishment” known also as the Istanbul Protocol as soon as any suspicion of mistreatment arises. Then the Rapporteur points out to the duty of the Attorney General to initiate prosecutions against whomsoever may be responsible for torture or mistreatment, including the superiors who may have tolerated and condoned that act.

This reference to Superiors is quite important within the context of Sri Lanka, although literarily thousands of cases have been received each year, no action has ever been taken against officers above the rank of OICs – Officers in Charge, for their responsibility for condoning the practice of torture and ill treatment. In this context particularly the role of ASPs, who are required by the Police Departmental Orders to supervise the conduct of police stations, is important. The use of torture and ill treatment at police stations will come to an end if the ASPs play their role of supervising the officers of these police stations and take action against those who violates the law or the police regulations. There is no recorded instance in the recent times when any ASP has done his duty in this regard.

The Anti-Corruption Front Report

In the ACF report bearing No 177 dated 16th May 2016, there is a detailed enumeration of 38 cases which according to the report, the criminal investigations department or the FCID has completed their investigations. All the cases mentioned are those on allegations of serious corruption involving Minsters of the previous Government or other very senior officers involved in government administration.

Amounts involve, and vary from LKR 2 Million to 700 Million. In all these cases where the investigations have been completed the status of the indictments is that either such status is not yet unknown, or “status of charges or indictments unknown”, “AGs advise is unknown”, and delay in the AGs Department.

The AHRCs listing of the defects of the AGs Department

The prosecutor’s role if played in Sri Lanka by the Attorney General’s Department. This Department has also seen serious degeneration of quality due the following factors.

  • Under the previous Mahinda Rajapaksa government the entire department of the Attorney General was brought under the control of the Presidential Secretariat. This was a fundamental violation of the tradition of independence of the Attorney General’s Office, as was maintained for a long period. Bringing the Department under the control of the Presidential Secretariat was a blow to this independence and also brought down the image of the institution before the public eye. It also brought severe demoralisation into the institution. Although the new government has acknowledged this problem, it has not done enough to correct the damage done and of raise the status of this department.
  • The department is also perceived as having seriously suffered the politicisation processes as mentioned in the above paragraph which applied to the entirety of the public service.
  • During the previous government the department also abandoned the earlier held position regarding non-appearance on behalf of public officers, who were respondents in fundamental rights applications before the Supreme Court, relating to torture and ill treatment. The department officers not only began to appear for the defence of these officers, they also often prevented issuing of Leave to proceed in fundamental rights application by providing information which were bias, even before Leave to proceed has been issued. The applicants in these cases had no way to contradict the information provided by some of the officers of the department as the applicants did not have any notice of the information provided by these officers to the courts. The following observation of the UN SR for independence of judges and lawyers, is relevant; “…The Attorney-General’s office acts as the representative of the State, which by no means should be equivalent to defending the government. His office should also be able to make a neat separation between the State and the public interest they act on behalf of and the persons behind the institutions so as to avoid any possible conflict of interest. Such conflict of interest have arisen for instance in cases where the Attorney-General’s office appears in the defence of police officers or military officers in cases of habeas corpus applications, as if the court decides that the respondent are responsible for the crimes they are accused of, the same office would be called to prosecute them.”
  • It is acknowledged that the Department does not have adequate number of state counsel, it is often said that the number available is less than half of the required number. One of the results of inadequate number of state counsel is that it often causes the delay in criminal trials and also leads to rather unprincipled forms of settlement of cases purely for the sake of speedy ending of cases. This has included sometimes agreements to grant suspended sentences, even for serious crimes such as rape and sometimes even murder.
  • Extraordinary delays in filing of indictments in the high court regarding serious crimes.UN SR on torture and ill treatment states that “…We understand that the average delay for State Counsel to bring a criminal case before the High Court after remand ranges from 5 to 7 years. This is a serious violation of due process and the presumption of innocence, and results in what is commonly known as an “anticipated penalty” without trial. It also violates the principle that provisional detention should be the exception and not the rule. I urge Sri Lanka to consider measures to make more non-violent offenses bail able and to experiment with alternatives to incarceration“.
  • The Attorney General and his department has failed to issue clear and proper guidelines for the investigation and prosecution of crimes and also to make specific guidelines for investigation and the prosecution of serious human rights violations, including torture, and violations of international human rights law. For all appearances, on matters of public law, the Attorney General’s Department acts not as having a role in the protection of the rights of the people but as representing state however repressive the state may be. The Attorney General’s Department acts more like a defender of repression rather than one acting for the protection of individual rights. The Attorney General has also failed to ensure that his department does not contribute to the delays in the courts and to issue instructions to the state counsel, to avoid delays.
  • As the Attorney General acts also as a legal advisor, this office should be exercised as it was done in the earlier period to advise purely on the basis of legal principles and not to justify illegal and unjust actions of the state. In the recent decades, there is nothing on record to show that the Attorney General opposed an unjustifiable action taken by the Executive, particularly in order to suppress dissent, and to limit media freedoms and to use the legal process to harass individuals. Cases against the former Army General Sarath Fonseka particularly immediately after the Presidential elections in which he was the common opposition candidate. There are also other cases like Jayaprakash Sittampalam Tissainayagam.
  • It is time for the Government and the Attorney General’s Department itself, to seriously examine the nature of damage the institution has suffered during the previous decades and to take the necessary initiatives for reform to prevent the department becoming an obstacle to the achievement of rule of law in Sri Lanka.
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Latest comments

  • 4
    0

    There is proverb among Tamils meaning ‘ Even if the Deity agrees, the Poosaary (priest) will not’ !

    Dr,RN

  • 9
    0

    The President and the Prime Minister have been making Vesak messages to the people asking them to uphold Buddha Sasana. Let the Minister of Justice start acting on it – he is also the Minister of Buddha Sasana!
    Acting on Buddha Sasana is acting on international and national laws!!

    Let the Minister have a chart in his Ministry to display on how he is implementing the recommendations by the UNSRs!!!
    All Ministers must be required to have charts in their Ministries to display how they are implementing election pledges.

    Vague Vesak messages of the last 6/7 decades have not been producing any effect on the country’s socio-economics.

    • 7
      0

      The Minister of Justice appears to be one of the biggest impediments to ‘Justice’, so instead of the President and PM asking us to “uphold the Buddha Sasana”, they should replace this fraud ASAP.

      Being also the Minister of Buddha Sasana shouldn’t make much of a difference, given the sate of Buddhism in Sri Lanka!

  • 2
    12

    How come [edited out]s UN Rapporteurs only come to our poor Motherland, to write these equally big ass Reports criticising each and everything they can find.

    Is it because of our good looks, good manners , good hospitality, good Auyrvedic Oil massages and dark handsome beach bums?.

    How come they never go to Afganistan, Libya , Syria , and even Iraq?

    Don’t they have any of those attractions?

    I mean they have good Lamb Kebabs, Koftas, Humus, Filafel and good Garlic sauce.I mean they used to have them.

    BTW Can Basil up date his profile picture…cr

    • 3
      1

      KASmaalam KA Sumanasekera

      An acquaintance has forwarded me a mail with copy paste message attached to it. Hence, this is most appropriate for Golfers the loafers I thought I better pass it on to you. The message is about equitable opportunity for women to have access to prestigious Golf clubs where they are being prohibited from playing balls. Men should learn the importance of equality.

      Here is the content:

      After all, if men are allowed to act like ridiculous, silly-trousered idiots, chasing their precious balls around their expensive private parks in their dumb little clown cars, then women have every right to act like that too.

      theguardian.com
      23/05/16

      Do you act like ridiculous?

      Are you a silly-trousered idiot?

      Do you chase your precious balls around your expensive private parks?

      Do you use your dumb little clown cars?

      • 1
        3

        Dear Native,

        Where did you get asylum?..It can’t be Canada or Australia where women out number men on some Golf Courses.

        I am not sure about women, but even the Dalits can’t play golf in the US.

        Anyway I will take you for a round at Eagles Link and you can walk with the ball boy.

        I will give my 9 iron to hit a ball around while I play.

        But you have to change in to pair of shorts,Wearing that verti will be hard when you have to walk 18 holes.

        And that Course is hard work.

        Hopefully your mate, Vellala Sambanadan won’t claim it, also as his ancestral land, and give it Surendran to build Condos for the Diaspora Vellalas.

        That will totally fuq up the only place we dalits have, to play a round of Golf.

        • 2
          1

          KASmaalam KA Sumanasekera

          The loafer golfer

          Do you chase your precious balls around your expensive private parks?

    • 2
      0

      Mr.Sumanasekera,it is better if you could please check your facts before criticizing something.These UN officials have been chosen from persons who have attained eminence in their respective fields.They are known to be competent,independent and impartial.

      These UN officials known as Rapporteurs have submitted reports at various stages practically on every country that is listed as deficient in a particular aspect.Yes,Afganistan and Syria included.Sometime back there was a damning report on France about that country’s treatment of immigrants and connected laws.Usually western countries don’t get rapped on matters like the Rule of Law as their public institutions are quite strong and vibrant.For example,in a western country,you will not see a policeman or the AG playing traunt to this extent.Vetted at early stage and if found wanting,they would have been sent packing.Years back,ex DIG Anura Senanayke as OIC Peliyagoda, was found to have been in collusion with the area Magistrate and had sold court productions (vehicles)without proper procedure.This was in a judgment delivered by Justice H.W.Senanayake in the Court of Appeal.But the IGP of the time did not take action on it.

      So Mr. Sumanasekera,perhaps now you would understand why rogue states like Srilanka need to be named and shamed in the international arena through the UN reporting system in order to reform our public institutions.We may not be able to always have the best of men(and women)in public service,but if we possess strong public institutions and mechanisms in place,these major abuses,corruption and violations could be minimized to a great extent.

      • 0
        0

        Name & Shame in the International Arena by the Rapporteurs who are appointed by the West and paid by the West Huummmmmm

        How coool…

        Wonder what is in there for our Dalits..

        More Meals, Better Meals, More Money , Better Money, Houses or Tarps.Better Buses , Better Roads , Better Clothes, Better Schools, Better shoes if they have any……..

  • 12
    0

    As long as Wijedasa Rajapakse is the minister of justice nothing will happen.

    If Sirisena and Ranil are serious and mean business, they should take the ministry of justice away from Wijedasa Rajapakse.

  • 9
    0

    Very soon, vital files may go missing from the AG’s department.

  • 7
    0

    The public is interested in the following matters too: When will Hon.
    Wijeyadasa have a look next?

    a) Computer purchases for Mahindodaya labs. in Rs. 5.87 Bil..
    b) Issue of 1000 diplomatic Passports during 9 yrs. of Rule.
    c) Wealth of PSD Staff during the past Regime
    d) Tourist Board Officials Rs. 5.7 Mil. . transactions
    e) SL Insurance re involvement of a Doc. & ex-Minister
    f) S.E.Corp Rs.4.7 Mil. transaction
    g) Diary Printing by an ex-Minister Rs. 1.4 mil.
    h) D.A.Rajapakse Museum construction Rs. 91 Mil.
    i) Purchase of Gowers Pvt. Ltd. by a Parliamentarian
    j) 40 luxury vehicles rented by S.Eng.Corp.
    k) Rs. 3117 Mil paid by a Chinese Engineering Co. into 6 Banks A/cs.
    l) Commonwealth Games Trip of 140 persons & exp.of Rs.358 mil.thereof
    m) Rs. 12,500 mil.found dumped in Temple Trees during Dec.2014/Jan.2015
    n) Prof. S.Wijeyasooriyas allegation re the sale & distribution of 40
    Kg. Gold, also Siriliya A/c.
    o) Air Force Commanders dealings in the hire ofHelicopters to rain Ltd.
    p) J.C.Weliamuna Committee Rpt. on Lanka Airlines still in the hands of the PM of SL.
    q) An ex-CJ admitting to lenient or corrupt (?) verdict on “Helping
    Hambantota” Case!

  • 6
    0

    Never trust a lawyer be it AG,MP or Politician. They are the scum of society

  • 3
    2

    Instead of dishing out rhetoric from air condition comfort, why not AHRC & Basil F’do channel some Danish monies to the AG’s department to enable them to increase staff OR why not sponsor the AG’s department so that they can hire more staff.

    Basil F’do knows all and a good critic placed their by his pay masters to cover their sins.

    Can anyone tell how long the Chilcott report will take?
    Britain’s accountability for “Bloody Sunday” massacre took 38 years!
    Basil fernando dreaming. part with your pay master’s funds to get the AG’s dept up and running instead of whining.

  • 3
    0

    From the time the Executive Presidency was adopted in late 1978,Judges,AGs Dept: Police,Public Service and practically all arms of the State has been Politicised! It will take many more years to wean out this culture and restore the system to at least the Pre-1970 era.
    Can the present Minister of Justice hold a candle to E.B.Wicremanayake Q.C,and Sir.Lalita Rajapakse Q.C.who adorned the Ministry of Justice in the 50s?

  • 2
    0

    So much have been said about the incompetency of the AG’ department and the villain of a justice minister. Is it not like raining on a buffalo? Nothing will change. The dogs will bark but the caravan moves on.

    • 0
      0

      August 2017 will see the end of MS and RW unless the question of past/present corruption is transparently dealt with.

  • 3
    0

    “the Attorney-General should issue clear and proper guidelines for the investigation and prosecution of crimes, specific guidelines could be developed for the investigation and prosecution of serious human rights violations, including torture, and violations of international humanitarian law. “

    Our AG Jayantha Jayasuriya is like nero, playing the fiddle while Sri Lanka is gasping for justice. In this case as seen in the picture – wining and dining surrounded by well kitted up (probably padded too) people.

    And who is his boss – the foul mouthed super rogue Wijedasa Rajapakse.

  • 0
    1

    [Edited out]

  • 2
    0

    Basil,

    You will never hear from me again but this is my parting shot.

    You and the AHRC should be investigated…………..

  • 0
    0

    Cats out of the bag……… Earlier I just asked AHRC to sponsor the AG’s department and now here comes a thunderbolt……..
    Oh ! Basil, what have you been up to????????

    You and the AHRC should be investigated………….. Ex- HK Intel Cop John Stewart Sloan & a former employee of Basil F’do.
    Something is running deep…… at Basil’s AHRC.

    This is a very….very disparaging ….and …a damning….accusation….
    Lets forward this accusation to the FCID of SL and ICAC (Independent Commission Against Corruption) in Hong Kong to investigate AHRC & Basil F’do now that there is an open complaint.

  • 0
    0

    The paper is quite straightforward and needs no further comment except for my two cents’ worth: The Attorney General, being the Principal Counsel for the President in their capacity as the chief prosecutor can either be a public servant as in the case of Sri Lanka or a politician being elected and member of the cabinet as in other democratic countries. He is in effect the principal counsel for the President but this does not mean that he defends the President in all their (unlawful) actions. Lord Justice Denning of Britain most interestingly once noted: ”Underlying all legal training is the spirit of the profession frankness, fairness, honesty, courage and the recognition of one’s duty to the Court and client. That is our heritage which we have to share……” Bensen

  • 0
    0

    “…………………from the High Court after remand takes from 5 to 7 years”
    There are said to be more than 60 thousand pending cases, clogging the justice system.
    Each time a case is postponed, the lawyer benefits, and the litigant loses, monetarily.
    The system, over the decades, has been geared to benefit lawyers.
    Earlier, there were proctors and advocates.
    Now, only lawyers.
    The AG, like all his predecessors, is a product of this system.
    He cannot/is unwilling to expedite cases, as it would antagonise his colleagues in the profession.

  • 0
    0

    Justice.

    More than 60,000 pending cases you say.
    I would not be surprised if the Justice Minister will now ask for an increase in the intake to the Law college!
    So at the end of the day,if a stone is thrown,the chances are that it will hit an Attorney-At-Law!

    • 2
      1

      Plato

      “So at the end of the day,if a stone is thrown,the chances are that it will hit an Attorney-At-Law!”

      Will it hit Namal as well?

  • 0
    0

    This country is full of stupid people. Mr Basil Fernando is making allegations against the AG. Former AG Mr Wijetillake too was accused of delaying court cases etc etc. Now a new AG has taken over and appointed by MS and not by MR. Mr Fernando you want to make the judiciary system to work the way you want. I think you should look after your own affairs without accusing high government officials. They can’t please everyone in the country.

  • 0
    0

    Native.

    It would not hit Namal.The stone will find its way,like a projectile,to fall under gravity to hit an actual Attorney-at-Law!

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