SRI LANKA: AG’s reply to IIGEP; Kafkan metamorphosis of the Attorney General’s role

FOR IMMEDIATE RELEASE
AS-143-2007
June 27, 2007

A Statement by the Asian Human Rights Commission

SRI LANKA: AG’s reply to IIGEP; Kafkan metamorphosis of the Attorney General’s role

The Attorney General C.R. de Silva (AG) issued a letter dated June 18, 2007 to the Chairman of the International Independent Group of Eminent Persons (IIGEP) retaliating to two public statements made by the IIGEP on some serious short comings in the manner in which the Presidential Commission of Inquiry to Investigate and Inquiry into Alleged Serious Violations of Human Rights (The Presidential Commission) is being conducted.

The AG claims that his letter is written, “in view of the serious harm and prejudice caused by your Public Statements to the Commission of Inquiry and to the Attorney General’s Department, I am compelled to issue this communication to you publicly.” To anyone familiar with the conduct of the investigation by the Presidential Commission, the nature of the AG’s Department in Sri Lanka and the general collapse of the rule of law in the country, it will appear that the two statements made by the IIGEP are in fact understatements. Several local and international human rights groups have been stating these same things, and more in much stronger terms.

Neither the AG nor the government has ever replied to any of the exposures of the Presidential Commission’s work, the shortcomings of the AG’s Department and the complete breakdown of the rule of law in the country. The Asian Human Rights Commission (AHRC) has clearly stated that the purpose of appointing the Presidential Commission is merely to create the impression in the international community that something is being done on the accusations regarding grave violations of human rights, when in fact the country’s criminal investigation system is both unwilling and incapable of dealing with these violations; the AHRC has also categorically stated that the AG’s department itself is both unwilling and incapable of dealing with the gross abuses of human rights taking place in the country. We have further, repeatedly stated that Sri Lanka is now one of the most lawless places in the world and that the justice system, consisting of the police, the prosecution system under the AG’s Department and the judiciary is unwilling and incapable of dealing with this situation. Thus, the two statements of the IIGEP have not disclosed any new revelations.

In fact, in recent years the AG’s Department itself has expressed very similar views to that of the AHRC and other international experts and organisations. A former Attorney General, K.C. Kamalasabeyson, in a lecture delivered on December 2, 2003, very frankly exposed the problems of the erosion of the rule of law faced in the country and the problems of the system of justice, including the ones his own department was facing. He said:

“Today a victim is reluctant to visit the Police Station. There are complaints that when an offence is reported prompt action is not taken by the police. Investigations at times do not proceed in the correct direction. I am personally aware of an instant where the investigators persuaded the father of the deceased who was murdered to consult a soothsayer to ascertain the description of the murderer.

No amount of law could remedy this situation. The mere passing of laws and opening or maintaining of police stations are not sufficient. The system itself has to be refined and fine tuned at all levels. “

He further stated:

“There is a total erosion of the Rule of the law. It is this system that requires to be refurbished.”

The present Attorney General, while he was the Solicitor General, headed a committee appointed by the Ministry of Justice, Law Reform and National Integration, the purpose of which was to make recommendations to amend practice and procedure in investigations and courts with a special focus on curbing crime and eradication of procedural delays existing in the administration of criminal justice in Sri Lanka. This report candidly admits the failure of the justice system. It admits the failures of the criminal investigation system, the grave inadequacies of the AG’s Department and the delays in the judicial process itself. The report stated:

“Inadequacies in the practice and procedure in the administration of criminal justice have been identified as one of the main factors contributing to delays in the dispensation of criminal justice in the country.

The rapid escalation of crime, increasingly committed in an organised manner with violence, impunity and considerable sophistication, thereby resulting in the loss of public confidence in the criminal justice system, has highlighted the need to review the existing criminal justice framework in Sri Lanka.”

The lecture of the former Attorney General and the report of the committee headed by the present AG as Solicitor General is available on the internet at: http://www.alrc.net/doc/mainfile.php/documents/, The Eradiction of Laws Delays: http://www.alrc.net/doc/mainfile.php/documents/431/ and Balancing rights of the accused with rights of the victim: http://www.alrc.net/doc/mainfile.php/documents/432/

Therefore, one may wonder as to the reason why the AG is creating this hullabaloo, or what seems like a bull-in-a-china-shop-like approach into some of the very simple criticisms and recommendations made by the IIGEP. The basic criticisms objected to by the AG are that there is a delay in the way the Presidential Commission is being conducted, that the AG’s department has a conflict of interests in their participation in the Presidential Commission’s proceedings, that the presentation of facts by counsel from the AG’s department on some earlier dates at the Presidential Commission have not been impartial and that portraying the Presidential Commission as being capable of dealing with the human rights violations in the country is not an accurate representation. The IIGEP’s recommendations are to speed up the Presidential Commission’s work, to allow independent lawyers to assist the Presidential Commission and not to use the Presidential Commission as a reason for not having a more robust monitoring of human rights locally, as well as through international human rights monitors. There is nothing to be irritated about in their recommendations if they are looked at from a purely legal point of view, and with the view to improve legal mechanisms in dealing with the colossal problem of grave violations of human rights and the collapse of the rule of law.

However, the AG’s objections seem to be on more political grounds. And that is what makes his letter a confirmation of both what the IIGEP has said and what the AHRC and other human rights organisations have been pointing out in the past.

This letter and the earlier comment by him to the first IIGEP statement were written by the AG ‘on behalf of the government of Sri Lanka’ and that puts into question as to how these writings come under the expected acts within the role of the AG. To be more precise, as to whether the AG’s role as the legal advisor to the government and the public prosecutor in the country has now also been expanded into being a political spokesman for the regime, and also that of a press officer. Under totalitarian regimes the role of the public prosecutor is to legitimise all actions of the state. In that situation the role of the AG or someone holding a similar title is completely political. The role of such an office is to hold that whatever the government has done, or omitted to do is right and such doing or not doing is for the benefit of the people. This is more the role similar to the prosecutor at the Spanish Inquisition or the role of the prosecutor under Stalinist, socialist regimes. Has the role of the AG substantially changed from one that is expected in a liberal democratic regime to one which is under a dictatorship?

This question is not merely rhetorical; it goes into the constitutional development of Sri Lanka. The first constitution of independent Sri Lanka was that of a liberal democracy. However, it has been described as belonging to a Westminster Model or an Anglo-American model. The use of such descriptions has in fact helped to undermine the liberal democratic features of this constitution. In 1972 and 1978 there were attacks on basic liberal democratic notions of governance. The primary attack was on the separation of powers. While the terminology of separation of powers was retained there was a substantive change in undermining the independence of the judiciary. The 1972 Constitution undermined the independence of the judiciary, purportedly in favour of greater power for the legislature. The 1978 Constitution undermined the legislature and judiciary in favour of the executive. This constitutional change had a direct bearing on the role of the AG. The AG was expected to be the regime’s puppet. Several of them since 1978 have played this role quite willingly for the benefit of various regimes. Perhaps it was only the last one to retire who tried to assert the independence of the department, at least to some extent.

Even he was powerless when it came to the prosecution of cases against officers protected by the regime, as demonstrated in the failure to prosecute persons accused of disappearances; for example in about 30,000 cases in the south alone. The prosecuting role relating to allegedly state sponsored crimes has not been within the capacity of the AG’s Department. However, becoming a political spokesman for the government happened when the AG’s department was assigned to attend meetings of UN agencies with the role to defend the government against alleged human rights abuses.

The role of the legal advisor to the government

The duty of the AG as a legal advisor to the government required that it was his duty to represent public interests with ‘complete objectivity and detachment’. The idea of providing legal advice representing public interests with complete objectivity and detachment is possible only as long as a liberal democratic form of governance does in fact operate. Written into the complex web of institutional relationships within a liberal democratic form of governance is the independence of the departments which carry out various functions. This relative independence makes it possible for each department not to be driven by any individual, or even by a cabinet of ministers, as they wish. As an independent and detached officer, the AG provides his advice to the government based on the law alone. The government of course, is under no absolute obligation to accept this advice and may in fact reject the advice. However, what a government cannot do is to directly or indirectly expect the AG to give advice that it wishes to hear. Twisting the law to make any executive decision appear as constitutional or legal, when it is in fact, not so, is not the role of an AG expected within a liberal democracy.

However, if the liberal democratic form of governance has been replaced with an authoritarian form of governance, as it happened in 1978, this concept of ‘complete objectivity and detachment’ may no longer be something that is possible.

The former Supreme Court justice, K.M.M.B. Kulatunga, who was also a state counsel for a long period and also a Solicitor General, wrote a book in 2004 entitled, Disorder in Sri Lanka. In that book a whole chapter is devoted to ‘Attorney General as advisor to the government and as guardian of the public interest.’ The assumption on which this book is based is that the 1978 Constitution provides a near complete legal provision for the safeguarding of the independence of the judiciary. Dr. M.J. A. Cooray, wrote a book entitled ‘Judicial role under the constitutions of Ceylon/Sri Lanka,’ which was published in 1982. It was also based on the assumption that the 1978 Constitution was based on liberal democratic principles and that it may better protect the independence of the judiciary. However, it is this very assumption maintained by both authors that is flawed. Constitutional provisions cannot merely be judged by the jargon over the terminology used in the constitution. The relationship of various parts of the constitution should be weighed to understand how the operation of various constitutional provisions will impact on the actual relationships between the branches of government. The provisions of the 1978 Constitution regarding the powers of the executive directly contradict the provisions of the same constitution regarding the independence of the judiciary. As the primary purpose of the 1978 Constitution was to introduce the all-powerful executive presidency, this could not coexist with the independence of the judiciary as envisaged in a liberal democracy. Either the judiciary had to reshape the powers of the president and bring the institution of the presidency within the framework of a liberal democracy, or the president had to overpower the judiciary and make it subservient to the president for all practical purposes. It is the latter that really happened.

This metamorphosis was also to affect the role of the AG. Once the judiciary was made to play a subservient role to the executive the AG could not play the role of complete independence and detachment as expected of an AG functioning under the first constitution of independent Sri Lanka.

Constitutional experts, some lawyers, judges and also international experts want to believe that Sri Lanka still has a liberal democratic form of governance and therefore its AG must conform to the ideal type of a similar post within a liberal democracy. In his letter the AG himself tries to create the image of his office in similar terms:

“According to the Sri Lankan law, the Attorney General is the principle legal officer of the criminal justice system of the country. His role is quasi judicial in nature, and statutorily defined.”

This is a general premise that is repeated by everyone writing on the subject. However, what the AG does not say is that the 1978 Constitution effectively changed the meaning of all such definitions. As for example, the “principle legal officer of the criminal justice system of the country.” If, as the AG implies, he cannot do anything if evidence is not made available by the police investigators, how can the AG be the principle legal officer of the criminal justice system of the country? In fact, those officers who decide not to investigate some crimes, or to investigate them badly, in a way that no prosecution is possible, are in fact the people who decide how the criminal justice system functions. The AG tries to make out that there is nothing he can do about it. And in saying so he is in fact making an accurate statement regarding how the criminal justice system functions within the framework of the 1978 Constitution.

Within that framework the AG is “the principle legal officer of the criminal justice system of Sri Lanka” only in name. In reality he is just a bystander who may prosecute if a proper file falls into his hands. Whether he should receive such a file or not is decided by others. These others include the following: the head of the state and the leaders of the political regime; seniors officers of the police and the armed forces; even junior officers who may be working with a view to favour someone and any other rich or powerful persons who may have the power to decide when, if and how the investigations are carried out.

The manner in which such decisions are made has been developed in quite a sophisticated way since 1978. One way of excluding possible investigations is by designing emergency regulations in such a way to make investigations virtually impossible. This has been done in the past in the following manner: The power to dispose of a dead body is given to a police or military officer. In this way the duty to bring all suspicious deaths to the notice of the judicial magistrates is removed. No documents need to be kept of who allowed the disposal of the body of anyone. In that way, persons who are abducted or arrested were made to disappear without any trace whatsoever. The actual numbers of such disappearances has to be counted in the tens of thousands. The participation of the AG in such an event can only be by the AG also being a part of the persons who draft such emergency regulations. Under a liberal democracy when such regulations are drafted the duty of the AG would be to provide the legal advice and to demonstrate how such emergency regulations are contrary to law. However, under the circumstances created after 1978 the AG’s department did not play that critical role but instead, directly or indirectly participated in the drafting of such emergency regulations and defended it thereafter.

In the present context, while the AG remains a bystander of the criminal justice processes in the country, the actual ‘principle officers’ who decide on the operation of the system are the people who wield political power in the country in one way or another.

Legitimiser of illegality

From the position under the original constitution of giving legal advice to the government ‘with complete objectivity and detachment’, the role of the AG since the 1978 Constitution has changed to legitimising the illegal acts of the state. The ardent defense that the AG has tried to put up in defense of the Presidential Commission, as well as the participation of officers of his own department in that inquiry, will remain as a clear demonstration of the extent to which the AG is expected to be an apologist for the illegal acts of the state. At present the local and international criticism is that there are gross violations of human rights in Sri Lanka and there is no adequate action on the part of the state to deal with such violations. Not so, says the AG. The state is doing all it can. That is what the present AG has been saying in Geneva and is also saying in this letter to the IIGEP.

The AG’s role now is to defend the government against the criticisms regarding their failures to ensure rule of law and the security of the people. The AG says in his letter:

“With the view to supporting the independent Commission in fulfilling its mandate, the Government of Sri Lanka, its agencies and public servants remain available and ready to assist the Commission in whatever manner.”

One would wonder if there was such readiness on the part of the state and the public service, why such gross crimes should be happening all the time. Or does this statement imply that in fact, no such grave abuses are taking place and that everything is under control. If the impression that they are attempting to create is that the reporting of serious crimes is exaggerated and also that the reporting of the state’s failure to deal with the situation is also exaggerated, then that may be an observation of a very detached person who has removed his mind and heart to a place far away from the realities of the country. But, what is meant by complete objectivity and detachment is not complete denial of actual realities.

It is the tragedy of political apologists that they must live by the art of denying the obvious and cultivate the capacity to plausibly deny the actual situation. When the government’s legal advisors and the country’s prosecutor’s role is distorted in this way we are not talking about a liberal democratic form of governance. We are in fact, talking about a far more serious metamorphosis of the nature of governance in the country.

The great writer, Franz Kafka, wrote the story ‘The Metamorphosis’. Gregor Samsa, a travelling salesman, wakes up one morning to discover that “he had been changed into a monstrous verminous bug. He lay on his armour-hard back and saw, as he lifted his head up a little, his brown, arched abdomen divided up into rigid bow-like sections. From this height the blanket, just about ready to slide off completely, could hardly stay in place. His numerous legs, pitifully thin in comparison to the rest of his circumference, flickered helplessly before his eyes.”

The AG’s department, since 1978 has been transformed from the great role that it was expected to play under the first constitution of independent Sri Lanka. Legally speaking now, the department has metamorphosed into the position of an insect.

The IIGEP has done well by discovering within a short time some of the fundamental defects of the Presidential Commission as well as the role of the AG’s Department in this inquiry. As one critic has pointed out, the IIGEP has within a short span of time been able to discover the real situation. However, what they have discovered so far is just the surface. What is happening at the inquiry, including the role played by the AG’s department, is a part of a far bigger legal and political metamorphosis that has taken place in Sri Lanka. Under the present circumstances neither the government nor the Attorney General can do anything better that what they are doing now. Certainly, they may even do worse as the consequences of the metamorphosis matures.

There is something really rotten in the state of Sri Lanka. There is a comprehensive collapse of all aspects of governance. It is not a liberal democracy in any sense. It is in fact, a failed dictatorship. In 1978 the fantasy was to develop a strong dictatorship. However, all attempts to move towards that dictatorship resulted in the anarchy that is being witnessed today. This is not the first time that the Asian Human Rights Commission has pointed this out. During the last ten years or so we have done so repeatedly.

If the IIGEP is to play an important role in trying to address this situation it must, first of all, try to understand this total picture. Once the total revelation unfolds it will be seen that nothing much is to be expected of an inquiring commission and an Attorney General of a failed state.

For detailed web references on the problems of the criminal justice system in Sri Lanka kindly see: SRI LANKA: Web references on Sri Lanka’s rotten criminal justice system and the need for reforms – http://www.ahrchk.net/statements/mainfile.php/2007statements/1079/