SRI LANKA: A much compromised Attorney General’s Department contributes to undermining of rule of law and democracy

On June 1st the International Independent Group of Eminent Persons (IIGEP) submitted its first Interim Report to the President of Sri Lanka. The report contained the observations and concerns of the IIGEP about the Presidential Commission of Inquiry to Investigate and Inquiry into Alleged Serious Violations of Human Rights (The Presidential Commission).

Among other things the IIGEP expressed concern about the role of the Attorney General’s Department as legal counsel to the Commission.

“We are concerned about the role of the Attorney General’s Department as legal counsel to the Commission. The Attorney General’s Department is the Chief Legal Adviser to the Government of Sri Lanka. Members of the Attorney General’s Department have been involved in the original investigations into those cases subject to further investigation by the Commission itself. As such, members of the Attorney General’s Department may find that they are investigating themselves. Furthermore, it is possible that they be called as material witnesses before the Commission. We consider these to be serious conflicts of interest, which lack transparency and compromise national and international standards of independence and impartiality that are central to the credibility and public confidence of the Commission.”

This observation regarding the conflict of interests faced by the Attorney General in relation to the Presidential Commission should be an occasion to inquire into the much compromised situation of the Attorney General’s Department as it stands today in terms of prosecution relating to abuse of human rights, as well as the prosecution of crime in general.

The Attorney General’s Department is today functioning in the following areas (among others); it is the legal advisor to the government; it is the country’s premier prosecuting agency regarding all serious crimes and it is also the legal advisor to the government with regard to the state’s treaty obligations to the United Nations human rights agencies. Often the department becomes the chief spokesman on behalf of the state during official meetings of such agencies where its officers accompany the diplomats representing the government. As the government’s legal advisor it also relates closely to senior staff of the government agencies, particularly officers of the police and armed forces; the role of the government’s legal advisors has changed radically in recent decades to mean the legal advisor of a particular regime which often implies having to give legal advice and even prosecute cases which are very politically motivated.

Before we comment on these roles it is fitting to note the change of public perception about this department which has taken place over the past few years. Today the public does not perceive the Attorney General’s Department as an independent department. On issues of very great importance the department’s independent role has been compromised for a long time now. The colossal crisis the country has faced has brought into question the role of the chief prosecutor. Large scale crimes such as the disappearances of tens of thousands of persons and gross forms of human rights abuse that were considered necessary by successive regimes have reduced the Department, at best, to that of a spectator. However, it was often even more compromised than that when extremely controversial emergency regulations were brought in, for example like the one in 1988 which gave authority to officers of the rank of ASP and above to order the burial of a body without any reference to a court; the Department has not been seen on record as opposing or objecting to it. It is not an exaggeration to say that the department now lacks a moral credibility which is an essential attribute of any organisation that has to play the function of the public prosecutor.

The role of the advisor to the government

On the role of the advisor to the government the public have witnessed that on many occasions of great constitutional importance the opinion of the Attorney General’s Department has been rejected by the government. One glaring example was on the issue of the appointments relating to the 17th Amendment. On this issue the position taken by the Attorney General was not honoured by the government and the appointments were made, ignoring the provisions of the Constitution itself. The basic position of the government seems to be that the role of the legal advisor is to conform to whatever devices the government arbitrarily decides to undertake. Under these circumstances playing the role of an independent legal advisor is not possible.

The role of the public prosecutor

The role of the public prosecutor requires that the department is able to prosecute all cases on the basis of legal criterion. However, in recent decades this position has changed significantly. Political convenience has become an enormously important factor in prosecutions. In the case of over 30,000 disappearances in the south in the late eighties the role of the department was a negative one. Even regarding the limited number of cases which were recommended for prosecution by the Commissions of Enforced Disappearances there had been no successful prosecutions. There was a unit established within the Attorney General’s Department under public pressure but that was just a show piece and not a genuine prosecuting branch.

Even on purely criminal cases regarding prosecution and bail matters there is widespread suspicion about various forms of influences that can enter into the decisions relating to such matters. A regime’s pressure and the pressure of politicians are not the only ones. Various forms of societal links and other undue influences are also suspected as reasons for decisions not to prosecute, to delay prosecution, for files to go missing and many other similar allegations.

The role of advisor to officers of the state

Perhaps this is area in which the department has been compromised most in the past. Several insurgencies in the south, north and the east have raised many allegations of extrajudicial killings, disappearances, torture and the like against officers of the state.

In the eighties in particular, there were many habeas corpus applications in which serious allegations were made against senior police and military officers. It was during this time that the department made the fatal mistake of assigning some state counsels to advise officers facing such charges on how to make false affidavits denying the allegations. It may have perhaps been the first time that officers facing serious allegations were helped in this manner by the department. Naturally, under such circumstances senior officers who receive such advice would have lost whatever fear they might have had regarding the high standards of integrity that the department should adhere to in dealing with all matters of law and discipline. When the prosecuting branch and officers facing serious criminal charges come to an understanding to help each other then the very existence of the department is threatened. Observers believe that it was this move, more than anything else that damaged the department. The fact that no open admission has been made about such bad practices and no serious apologies have been made on this score also helped to perpetuate a bad image, not only for outsiders but also for those who know the inside story.

A spokesman at UN human rights bodies

Meetings of UN human rights agencies often becomes an occasion at which the Sri Lankan government takes a completely defensive position and attempts to deny all the allegations that are made by international agencies as well as local critics. UN sessions are not meant to be such an adversarial process. They are in fact meant to be a dialogue where the state can admit to its limitations, including even serious violations of human rights, and express resolve to overcome such problems. Such a frank approach requires a will on the part of the government to improve the human rights situation and also to take concrete steps regarding various types of violations.

As the government is firmly resolved not to do anything to improve the conditions within the country giving rise to such violations it engages in trying to refute such allegations and to give an image of extreme innocence about its human rights practices. It also tries to portray that the allegations are not well founded and even malicious. This unfortunately is the approach that the Sri Lankan government has adopted on many an occasion. Often formulating such responses of denial becomes the function of some officers of the Attorney General’s Department. In recent years some of them have acquired quite an expertise on this issue. Reading some of the statements made to treaty bodies will be quite bemusing to any Sri Lankan who is familiar with the actual situation of the country. However, when a professional agency committed to the enforcement of the rule of law has to engage in such exercises of falsification it affects the very nature of the institution itself.

The contradiction that the department faces in this situation may be illustrated by an example. In recent years the department has filed over fifty cases against state officers regarding torture under the CAT Act (Act No. 22 of 1994). That is an illustration of how widespread police torture is in the country. However, when the department’s officers made submissions before the Committee against Torture they tried to portray that there is no such serious problems regarding torture in Sri Lanka. They even went on to deny some of the cases decided by the Supreme Court. A prosecutor’s role calls for strict respect for facts, a propaganda officer’s role on behalf of a government that is denying facts calls for callous disregard for the fact. When both these roles are done by officers of the same department then the department itself places itself in a dubious position.

Attorney General’s Department as a confused institution

All these many roles have turned the AG’s department into a very confused institution. That is quite a natural result of having to play contradictory roles and also having to justify each of those roles. It is quite natural for the public to look at these many roles and to be confused. When this happens to the country’s most important legal office the result is that the role of law becomes confused. In fact, the Attorney General’s Department now contributes in a very significant way to create confusion about the law and its operation in Sri Lanka. We are aware that such an allegation is one of a very serious nature. However, observing what has happened to this department over the recent decades, it is not possible to avoid the observation that today this department itself is confused and is in turn creating a great deal of confusion locally and internationally about the role of the law and its operation in Sri Lanka.

Other factors adversely affecting the Attorney General’s Department

It would be unfair to put the entire blame of the degeneration of the Attorney General’s Department on internal factors within the department. While it is starkly clear that several heads of the department since the late 70s have played pivotal roles to lower the standards of the department, it is not possible to separate such negative contributions from political and legal developments that have taken place in Sri Lanka in recent decades.

The cumulative effect of the many changes that have taken place in Sri Lanka since the 70s is that many of the basic concepts relating to law and its enforcement have now become very confused. Let us take a few examples: What is the place of the Constitution of Sri Lanka? Is it the paramount law of the country? The manner in which the 17th Amendment has been ignored and the presidential decrees contrary to constitutional provisions have been given effect to implies that the reference to the constitution as the paramount law has little meaning. The strange nature of the 1978 Constitution itself is that it prevents challenges to the constitutionality of actions as long as they are done by the executive president. The 1978 Constitution has also created confusion about the very nature of the constitution. Is it a liberal democratic constitution or not? The creation of the position of the executive president with absolute power and without checks and balances as available within the American or French constitutional systems has had the effect of diminishing the roles of the legislature as well as the judiciary. Any student of civics or constitutional law may wonder what this constitution is all about. Such confusion about the paramount law of the country affects all areas of the operation of the law.

There is also serious confusion about some aspects of the law that directly affects people. For example, what is the meaning of murder in the present context of Sri Lanka? Over 30,000 disappearances which the Commissions to Inquire into Enforced Disappearances has termed as abductions followed by killing and disposal of bodies are not treated as murder. When arrested persons are killed by the police on one pretext or another, such as them trying to attack the police who in turn kill them in self defense, such actions are treated as justifiable homicide at the inquest stage, thus preventing any further inquiries into such murders. Here, the concept of defense in criminal cases is allowed to be taken and proved at the inquest stage itself. This is a complete alteration of the concept of a defense in a criminal trial as understood in the criminal law in the country in the previous decades.

Let us take the concept of arrest. Abductions are also taken as arrest if these are done by the police or other law enforcement agencies. The constitutional and legal requirements relating to the arrest are not treated as being of serious importance when abductions take place. Further in recent times abductions are also considered as “covert operations.” Just recently this view which has been practiced for a long time was defended by the Secretary of Defense, Gotabhaya Rajapakse thus, “When the US does operations, they say covert operations. When something is (done) in Sri Lanka they call it abductions. This is playing with words.” (The Morning Leader, June 12, 2007). What is implied is that even abductions and forced disappearances could be brought within the legal meaning of ‘covert operations’. In fact this was the interpretation given to forced disappearances for many decades. The large scale disappearances of the late 80s were in fact treated as justifiable covert operations. The retired DIG Udugampola, described such operations as having been done all within the framework of the law. What he meant was that the emergency regulations have allowed for such actions. The particular emergency regulation that enabled such actions during that time was the power given to officers not below the rank of an ASP to allow disposal of bodies thus, displacing all the requirements to bring suspicious deaths to the notice of the magistrates. Virtually this emergency regulation paved the way for illegal arrests, detentions and forced disappearances.

Even in other areas what is law and what is not is no longer clear in Sri Lanka. For example is it contempt of court to talk loudly in court, and if so what should be the punishment for such an act. One person was punished with one year’s rigorous imprisonment for contempt of court for talking loudly. The UN Human Rights Committee found the decision to be wrong but no correction was made. Lawyers complain that fear of reprisals affect their work but despite of even a draft contempt of court law being submitted by the Bar Association itself nothing has been done to enact it. Questions have also arisen as to whether at the superior courts any judge can hear any case even if the same judge may have previously had something to do with it. General rules followed in developed jurisdictions on such matters do not necessarily apply in Sri Lankan courts. How should an inquiry into allegations against judicial officers be conducted by the Judicial Service Commission? Should a judge receive a written intimation of charges before any inquiry against him can begin? None of this is clear anymore.

From all areas of life similar problems regarding the law and its operation can be posed. It is an extremely difficult task for any citizen to have any certainty about what is actually the law in the country in any particular aspect of life. What is in the book and what happens in reality have become so different that to rely on the book may place a person in serious trouble.

This is the background in which the country’s premier legal office is functioning today. While it has itself contributed to bring about this situation it is today also a victim of the situation. The role of the prosecutor is one of the most basic roles in the maintenance of law and order. However, in Sri Lanka this office has now been so badly undermined that it is quite natural for a citizen to regard the prosecutor’s role with ambiguity.

There are two other issues to which the Sri Lankan legal system is unable to provide any rational answer. These are the questions of delay in the administration of justice and the question of witness protection. Delay has virtually made people reluctant to have recourse to law. Instead attempts to find shortcuts which are often illegal are now a part of day to day life in Sri Lanka. (Kindly see Delgoda Family Massacre and Confronting Lawlessness at http://www.ahrchk.net/pub/mainfile.php/delgoda/). On the other hand anyone who makes a complaint about crime must also be willing to pay with his life if he wishes to pursue such complaint. Killings and other extreme harassment to complainants and victims is now a common experience. Despite of a lot of talk there has been no real attempt to solve this problem.

The Asian Human Rights Commission has for several years now pointed out that Sri Lanka suffers from an exceptional collapse of the rule of law and that general lawlessness is a result of this situation. Today the Attorney General’s Department is unable to provide a solution to this problem. Instead it is itself a part of the problem. It is this magnitude of the problem prevalent in the country that should be faced by everyone either in the local community or international community who want a rational solution for it.