By P. Soma Palan –
I refer to the statements by two Ministers, both legal minds, the Minister of Justice, Mr. Wijeyadasa Rajapakshe and the new Minister of Foreign Affairs, Mr. Tilak Marapana, in the Daily Mirror of 19th August on (a) the Independence of the Attorney General’s Department and (b) International Inquiry into alleged War Crimes, respectively.
Minister Rajapakshe states that- I quote “the Judiciary and the AG’s Department act as independent institutions today and are free to act on the Police Reports given to it”. Does the Independence of an Institution means the freedom not to act also? It should, of course, have the freedom how to act. The Executive, no doubt, cannot interfere in this. But can it wait without acting? If Police Reports are given, it has to act on them. There is no freedom for inaction. If it finds no cause to take action on Reports given to it, then it must specifically and unequivocally say that the cases submitted to it have no prima-facie case to act upon, rather than procrastinate and “sleep on them”. Cannot the Minister concerned take the AG’s Department to task and instruct it to expedite action. This does not amount to political interference. This is sound management of the Department under your purview .Independence and non-interference does not mean tolerance or acceptance of inefficiency. Does it? Interference means influencing a course of action one politically desires. It is a question of either framing indictments for Inquiry by the Court or, state that there is no basis for charging the offenders. One of the two must be done. Otherwise, it is neglect of one’s duty. As a Minister in charge of the AG’s Department, he cannot wash his hands off, of Administrative control over it. The real reason is, the AG’s Department is not acting independently and objectively, but influenced by other external actors. The AG’s Department was a highly politicized one under the previous regime; it was directly under the Executive President. Although the previous regime is no more, relics of it are still extant. That is the crux of the matter. People demand justice, but it is denied to them.
International Inquiry into alleged War Crimes
The Minister of Foreign Affairs, Mr. Tilak Marapana says that- I quote “we have told them that foreign Judges and Lawyers may attend any domestic probe as Observers and this happened in the past as well.”He fails to distinguish and differentiate between the past context and the present context. This shows a lack discriminating reasoning. Or, he is mindful of this, but wants to mislead. He cites in support of a case where the M.P. Mr. Jayalath Jayawadena made a complaint to the IPU for the violation of his parliamentary privilege. He says that the IPU sent an Indian Judge as an ‘Observer’ to the Judicial Inquiry. There is a substantive difference between an Inquiry into breach of parliamentary privilege and an Inquiry into the violation of International Law and International Humanitarian Law on a Resolution of the UNHRC, which is an arm of the United Nations. One cannot equate both Inquiries on the same footing. IPU is an association of Countries adopting a Parliamentary Democracy, whereas UNHRC is a world body which is mandated with jurisdictional power to inquire into violations of Human Rights and Humanitarian Laws. Sri Lanka as a Member State has to uphold its obligations. Alleged War Crimes are exceedingly serious than a mere violation of parliamentary privileges, where a Foreign Judge as an ‘Observer’ would suffice, at a domestic Inquiry. Other false reasoning of the Minister is when he states that “ what is more important is that the International Community and agencies are of the view the Sri Lankan Government is safeguarding Human Rights, and there is Judicial freedom, media freedom, freedom of expression and freedom of assembly”. These are developments of the recent past after the regime change. But not features of the dark days of the previous regime. The present situation is no defense for the alleged war crimes committed during past period, and not a plea for expiation. However competent and learned our Judges are, the offenders are the political Leadership and the Military of the Country, therefore, it is a conflict of Interest for our Judges to inquire and judge our own case. Justice must not only be done but seen to be done is a hallowed legal maxim. Thus, there is no sense of discrimination in the reasoning of the Minister of Foreign Affairs, and the Minister of Justice, in the former case.