By Basil Fernando –

Basil Fernando

The erosion of the legal system means the erosion of the foundation of our nation. This erosion has today gone to the extent of shaking the very moral and ethical foundation of our society. As a person learned in the law, you know what this means. It means that our very existence as a civilised society is deeply in peril. Once this process is set in, there are can be only be two alternative outcomes: either the process will be stopped or we will face ever deepening collapse of every institution and aspect of our constitutional, legal, judicial, societal and moral fabric. That is where we stand today. It is from that perspective that we are alerting you of this. As the chief legal officer of the country, there lies a great responsibility on your shoulders if we are to take the alternative that we should take, towards rescuing all that is so fundamental to us.

15th June 2016

Mr. Jayantha Jayasuriya, PC.,
The Attorney General
The Attorney General’s Department
Hulftsdorp, Colombo 12,
Sri Lanka

Dear Mr Attorney General,

Regarding a State Counsel’s application to the Supreme Court to end a fundamental rights application relating to torture and fabrication of charges on a mere police apology

We have learnt through media reports that on 14th June 2016, when a fundamental rights application filed by Mr. Mohamed Amir came up before the Supreme Court, a State Counsel from the Attorney General’s Department informed the court that the police were willing to apologise to the petitioner for torture and fabrication of charges for possession of illicit drugs.

The facts of the petition were that during the riots in 2014, caused by the intervention of the “Bodu Bala Sena”, the petitioner was assaulted by a group of people and then taken to the Aluthgama police station, which proceeded to file charges against him for the possession of illicit drugs. The petitioner filed a fundamental rights application arguing that his rights had been violated by these acts.

On the basis of the information given by the State Counsel at the hearing on the 14th of June – that the police are willing to apologise to the petitioner – an apology was tendered by the Officer-in-Charge of the Aluthgama police, with the promise to the Supreme Court that the police officers will withdraw the charges filed against the petitioner.

The question that we wish to raise with you relates to the legitimacy and propriety of the State Counsel intervening on behalf of the police in order to enable the tendering of an apology for the serious allegations of torture, as well as the serious allegation of fabricating charges about the possession of illicit drugs. Both allegations against the police are of a serious nature. Is it the policy of the Attorney General’s Department that even such cases can be brought to an end by a mere apology and a promise to withdraw fabricated charges?

In our view there was no basis for the State Counsel to make an intervention for this purpose as the conclusion that the State Counsel, on behalf of the Attorney General’s Department, should have drawn from the willingness of the police to make an apology is that they admit to the violation of the rights of the petitioner on both allegations. When the police admit having committed these violations, is it the policy of the Attorney General’s Department that the police can escape the ramifications by tendering an apology to end the matter?

On the admission of the commission of such serious violations, which also amount to crimes, was it not the duty of the State Counsel to inform the Supreme Court that, as the police have admitted to committing these violations, they should be dealt with for violating fundamental rights and also separately proceeded against for criminal actions, because both acts amount to serious crimes?

Is it not the duty of those who represent the Attorney General’s Department before the Supreme Court to inform the Supreme Court of the legal situation arising from the police admitting the truth of the allegations made by the petitioner and clearly put before the Supreme Court the legal consequences that should follow under these circumstances?

According to the available reports, the State Counsel who represented the Attorney General’s Department has not engaged in discharging his duties in placing before the Supreme Court the actual law relating to the matters that have arisen during this case.

A fundamental rights violation is not merely a violation against an individual; it is a violation of the State’s obligation to protect the rights of individuals. Therefore, mere willingness on the part of the petitioner to accept an apology does not in any way expiate or expunge the violation committed by the State in the failure to protect the rights of the individual. The very reason for the existence of the fundamental rights jurisdiction is to ensure that the State’s duty to protect individual rights is not violated under any circumstances.

In any case, what was the need for the State Counsel to intervene on behalf of the police, particularly when the police admit that they have violated the rights as alleged by the petitioner? The police could have used their own lawyers to make whatever applications to court that they wanted. The duty of the State Counsel is not to intervene on behalf of the police in this case, but to explain to the court the position of the law arising out of the factual situation admitted in court.

One cannot help concluding that the State Counsel’s intervention was for the purpose of indicating to the Supreme Court that the matter could be brought to an end by way of an apology. The stamp of approval of the Attorney General is thus given to this scheme. Through the State Counsel’s application, the police have found an easy escape from liability.

The State Counsel has forgotten two more matters relating to fundamental rights: the illegal arrest and illegal detention of the petitioner. From the facts of the case, it is quite clear that there was no reason for the petitioner to be taken to the police station and for detaining him. The charges filed against him were admitted to be false and fabricated. It is quite clear that there was no reason to arrest or detain him. Whether this matter has been raised in the petition or not, on the plain reading of facts it is very clear that such illegal arrest and detention has taken place. That matter is itself of paramount importance. To reiterate the importance attached to preventing illegal arrest and detention in the common law tradition we quote here what the eminent British jurist AV Dicey wrote in 1885:

“The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification. That anybody should suffer physical restraint is in England prima facie illegal, and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the Courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it. Now personal freedom in this sense of the term is secured in England by the strict maintenance of the principle that no man can be arrested or imprisoned except in due course of law, i.e. (speaking again in very general terms indeed) under some legal warrant or authority, and, what is of far more consequence, it is secured by the provision of adequate legal means for the enforcement of this principle. These methods are twofold; namely, redress for unlawful arrest or imprisonment by means of a prosecution or an action, and deliverance from unlawful imprisonment by means of the writ of habeas corpus.”

We have no way of knowing whether a State Counsel is given a firm grounding on the principles of the common law, particularly relating to the personal freedoms and the protection of personal liberties. The particular conduct of the State Counsel in this case does not show that he has had the benefit of such an education.

We are writing to you to request you to inquire into this matter and to take whatever appropriate actions necessary to scrutinise the legalities of the issues involved. Besides this, apology or no apology, the police officers involved need to be criminally charged for fabricating possession of drugs charges against an innocent citizen. This is an enormously important matter and this terrible practice is being carried out at different police stations. As the officer whose duty it is to advise the State on legal issues, we think that you are obligated to clarify these matters to your department, as well as to the public at large.

As we were writing this letter to you, we learned that the Special Narcotics Raid Unit, in collaboration with the STF, seized 91.3 kilos of cocaine valued at Rs 2 billion at the Rank Container Terminal Container Yard in Orugodawatte yesterday morning, 14th June 2016.

We wonder if this too will come to the same end: by the tendering of an apology at some future time when the public will have lost interest in the matter? What is at stake here is therefore is the very meaning and relevance of law in Sri Lanka and what is to become of a nation that has trivialised the law to this extent. We look forward to hearing about your actions in relation to this matter.

We want to explain to you why the Asian Human Rights Commission is raising these matters for your attention. I am sure that you would not consider it to be a controversial statement if one were to state that the legal system in Sri Lanka has suffered profound disturbances, particularly during the last four decades. The following quote from the Honorable Minister for Foreign Affairs, Mr. Mangala Samaraweera, made at the august assembly of the United Nationals Human Rights Council, makes it very clear that the above statement is not of a controversial nature:

“Accountability is essential to uphold the rule of law and build confidence in the people of all communities of our country in the justice system. We also recognise fully the importance of judicial and administrative reform in this process. These are essential factors that must be addressed for the culture of accountability and the rule of law which have been eroded through years of violence to once again be ingrained in our society.”

The erosion of the legal system means the erosion of the foundation of our nation. This erosion has today gone to the extent of shaking the very moral and ethical foundation of our society. As a person learned in the law, you know what this means. It means that our very existence as a civilised society is deeply in peril. Once this process is set in, there are can be only be two alternative outcomes: either the process will be stopped or we will face ever deepening collapse of every institution and aspect of our constitutional, legal, judicial, societal and moral fabric. That is where we stand today. It is from that perspective that we are alerting you of this. As the chief legal officer of the country, there lies a great responsibility on your shoulders if we are to take the alternative that we should take, towards rescuing all that is so fundamental to us.

If everyone who bears responsibility in the sphere of the administration of justice makes an excuse on the basis that his institution does not have adequate officers, adequate premises, adequate resources and the like, then who is to bear the responsibility for the necessary rescue that we need to face to secure our own survival? Where there are such resource limitations, it is the duty of those who are responsible for these institutions to explain matters plainly to the government and to obtain the necessary resources. On the issue of the administration of justice, the taxpayer will not begrudge national resources being allocated to the extent necessary to ensure the existence of functional institutions. Therefore, the moral backing of the society exists for the leaders of such institutions who are willing to take bold initiatives and to demand what they in fact need from the government, who bears the responsibility to supply them. If, instead, the resource limitation is used as the excuse for poor quality services in the area of law and justice, the contribution would be towards the impending doom.

Both as the chief of the main prosecuting agency in the country, and the chief legal advisor to the government, you and your department owe an obligation to this society to ensure that our prosecution system does not fail us and that the government receives the advice needed to ensure that the protection of the legal system becomes its most primary obligation.

Every day everyone everywhere in the country is crying foul about everything that is happening within the justice system of Sri Lanka. That cry is heard within the country and also outside the country. The failure of every ambition of the country – such as its inability to draw adequate investments to ensure economic growth, the failure to ensure a corruption-free bureaucracy that will galvanize every aspect of the country’s life, the failure to maintain a proper healthcare system that is free from neglect, as well as the deterioration of the education system, and even failing to ensure that people receive drinking water that is not contaminated – all relates to the functioning of our justice system. It is our justice system that has the capacity to make us a socially responsible nation. All kinds of irresponsibility, which has given rise to so many diverse forms of grievances, can be traced back to the dysfunctional nature of our institutions of justice.

The matters we have raised about this one case adequately explain all the aspects that are really wrong in our justice framework. We have lost the attachment to upholding norms and standards, which are the building blocks of a justice system. The examination of this one case will reveal to you what has gone wrong in the system as a whole. That is the rationale for our intervention.

Thank you,

Yours sincerely,

Basil Fernando

Right Livelihood Award Laureate, 2014
Director of Policy and Programmes
Asian Human Rights Commission, Hong Kong.