President Mahinda Rajapakse will be attending meetings in Geneva in an attempt to discuss serious allegations of human rights abuses in Sri Lanka including abductions, forced disappearances, torture, the forced expulsion of almost 400 Tamils from Colombo, problems of a few hundred thousand internally displaced persons and the general breakdown of the rule of law in the country.
He is reported to be scheduled to have meetings with Louise Arbour, the UN High Commissioner for Human Rights and also with Amnesty International. His visits take place in a background where the British Foreign Office Minister, Kim Howells, expressed concerns about serious human rights abuses in the country. Both Britain and the United States have suspended some aid to Sri Lanka this year, citing rights abuses. Also the World Food Programme slapped conditions on food aid to avoid internal refugees being settled against their will. The president faces the threat of international isolation. The press reported that among his entourage on this mission is Mr. C.R. De Silva, the newly appointed Attorney General of Sri Lanka. It is the Attorney General’s Department that has the legal obligation to prosecute all violators of human rights abuses and the Attorney General himself being a part of this entourage is very likely to be seen as a manifestation of the conflict of interests that the Attorney Generals Department is being accused of.
Despite of the fact that in his former role as Solicitor General the present Attorney General has played a role at international meetings as a government spokesman in denying human rights violations, in his new position to appear among the presidents men will be to no credit to the countrys premier prosecuting agency.
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 Generals Department as legal counsel to the Commission. The Attorney Generals Department is the Chief Legal Adviser to the Government of Sri Lanka. Members of the Attorney Generals 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 Generals 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.
The above critique by the IIGEP points out one of the main causes for Sri Lankas inability to develop an effective rule of law system in the country. A rule of law system requires that socially harmful behaviour be made into crimes by way of law enacted by the legislature and that all crimes so enacted by the law be prosecuted without exception. However, in Sri Lanka, prosecution without exception is a policy that the main prosecuting agency, the Attorney General’s Department, has been unable to implement. In tens of thousands of cases where grave crimes have been complained of the department has failed to act. The reason for such inaction is that it has become an institution which is driven, not by primary concerns of law enforcement, but by many other extraneous considerations. Politics have played havoc with the performance of this most primary institution for law enforcement in the country.
The IIGEP has identified one of the most important elements for the failed rule of law system in the country which is the conflict of interests affecting the Attorney General’s Department. If the country is to have an effective prosecuting agency, this problem must be squarely faced and resolved and it will become the duty of the countrys legislators to address this very serious issue. The comments of the IIGEP, very much backed by the general impressions in the country that the Attorney General’s Department suffers from having to play contradictory roles, requires a parliamentary debate. This is the sort of problem that the legislators are compelled to act upon. The failure to resolve the issue of the conflict of interests bedeviling this most important institution would be to contribute to the further degeneration of the collapse of the rule of law in the country.
The parliament must question the propriety of the Attorney General becoming part of the presidential entourage on foreign visits, particularly when these include meetings concerning the countrys human rights record. The Attorney General cannot at the same time be the chief of the prosecuting branch having to fearlessly prosecute anyone including police and military officers of whatever rank accused of human rights abuses and at the same time be the governments spokesman in denying such abuses. It is only the countrys legislators that can cure the conflict of interest issue faced by the Attorney General’s Department.
