FOR PUBLICATION
AHRC-ART-048-2009
September 16, 2009
An Article by the Asian Human Rights Commission
SRI LANKA: Unrule of law and manipulations by the Attorney General’s Department
Basil Fernando
The Attorney General shocked the nation by making a request to the High Court of Colombo to withdraw an indictment against an accused charged with preparation of forged documents and misleading the Criminal Investigation Division (CID). The court refused the application as there was no basis justifiable in law to grant this request.
The accused, B.A. Abeyratne, the principal of a well known Colombo school was indicted in 2008. The indictment stated that the accused had influenced a police investigating officer to accept a number of forged documents in an inquiry with regard to the admission of children to the school. Some of the documents were alleged letters written to a former Deputy Education Director, which were, in fact, false documents.
The request to withdraw the indictment was made on the basis of an affidavit filed by the accused which stated that he will resign from his service at the school and in which he expressed regret about the damage caused to the school by his actions. Besides this, a number of persons wrote to the AG asking him to exonerate the principal, considering his service to the country, to the school and to the sphere of education.
It was on the basis of this affidavit and the letters that the AG made the request for the withdrawal of the criminal indictment despite of the fact that there was sufficient evidence to continue with the prosecution.
Regardless of the fact that the High Court judge refused this request and ordered the trial into the indictment, the very attempt by the AG to withdraw the indictment raises disturbing questions regarding the standards that are being used by the country¡¦s topmost official legal body which represents the prosecutor¡¦s role in Sri Lanka.
Are affidavits by accused promising good behavior in the future and letters by others about the various services allegedly rendered by an accused grounds that the country¡¦s chief prosecutor will take into consideration in dealing with criminal charges against an accused. Obviously this is not an acceptable standard in Sri Lanka or anywhere else where the rule of law still prevails.
The primary principles that the AG has undermined are the equality of every person before the law and that no one is above the law. As for equality, there can be only one standard applied to all. Will the AG either file an indictment or request the withdrawal of indictments regarding anyone on the ground that the accused has given an affidavit for good behavior in the future and that several persons have forwarded letters requesting him to be exonerated? If this be a valid criterion for not prosecuting then obviously the AG will not be in any position to file any indictment as every accused will be willing to give such an affidavit promising good behavior in the future. And these days, it will not be difficult for an accused to get letters of recommendation from even the highest places requesting people to be exonerated and to withdraw indictments. It is perhaps only very innocent persons who have failed to develop connections with the corrupt and the powerful who may fail to get such letters.
The AG¡¦s newly introduced practice also raises questions as to whose letters he is willing to treat with favour. Is it those from the powerful politicians or particular lobbies or persons who have some influence over him? Do all such people enjoy favour with him that an ordinary citizen would not have by way of a legal right? Thus, this new practice implies rejection of the concept of independence of the department.
The prosecution of citizens for criminal offenses is perhaps one of the highest duties assigned to an official. In the exercise of this duty is implied the problems of the protection of life and liberty. It involves considerations of the security of citizens from crime on the one hand and on other hand the protection of all persons from arbitrary deprivation of life and liberty.
Speaking at the United Nations this week the AG spoke about the lofty ideals of common law that are being pursued by his department. How does such talk about lofty ideals of common law compare with the AG¡¦s intervention to withdraw the indictment as mentioned above.
The learned judge in this case upheld the law and refused the application of the AG. Just for the sake of discussion let us talk of a hypothetical case where the judge may have allowed such an application. Then the AG would argue that it is the court that has made this decision and that Sri Lanka respects the separation of powers. Thus, the responsibility for the decision will be placed on the court.
This is the manner in which the responsibility of the absence of investigations and prosecutions into extrajudicial killings at the police stations is being justified on many occasions. It is argued that at the inquest that the Magistrate has held the case as a justifiable homicide and therefore that is the decision of the judiciary. What is not being discussed is that the investigative authorities and the prosecutors have not placed before the court all the circumstances relating to the extrajudicial killing of a person while in police custody. With no investigation being conducted into the affair in an impartial manner and with documents forged to give the police version of the events, the courts only have the evidence that the police and the prosecutors have opted to place before them. However, later the complaints regarding the absence of investigations and improper prosecution are being made and excuses are sought on the basis of the verdict of the Magistrate.
It is in the same manner that the AG argued about J.S. Tissainayagam¡¦s case before the United Nations Human Rights Council. He argued that the 20 years of imprisonment was a minimum sentence and was a decision of the court and that Sri Lanka respects separation of powers. What was not placed before the council was that the Prevention of Terrorism Law is a draconian law under which confessions are admissible as evidence and that acts which are not otherwise crimes are made into crimes. As for sentences the PTA can ascribe as larger sentence as it wishes without considering any other factors, which go into the making of offenses and the prescribing of sentences.
The whole system of criminal justice in Sri Lanka is standing on its head. The law is manipulated and twisted to get whatever result the prosecutor wants. The prosecutors, when they wish can also become defenders, particularly when they participate in preliminary enquiries and subvert the process by various means.
It is the department of the Attorney General that needs to come under public scrutiny if the rule of law, which is lost in Sri Lanka, is to be recovered.
