By 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

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.