An AHRC Statement
The recent decision of the Sri Lankan government to re-introduce the death sentence adds to the already very bad human rights record of the country. The argument that the increased crimes rate requires the reintroduction of the death sentence does not stand up to examination. There are fundamental failures in the criminal investigations and prosecution system in Sri Lanka that allow criminals to remain free, however serious their crimes. The Hangman can become a substitute for proper criminal investigators and competent prosecutors.
The present situation of increased crimes must blamed on the criminal investigation authorities and on the prosecuting department which in Sri Lanka is the Attorney General’s department. However, the relationship between these two departments themselves are inherently defective. As it exists now, criminal investigation is entirely the function of the police and if they fail to investigate, the prosecutors can wash their hands by saying that there is no evidence with which to prosecute. While this situation remains, all that the hangman can do is to send a few poor people to the gallows as a deterrent to others. This will only be a further mockery of justice in a country where justice is fast becoming a distant dream.
We instead call upon the government of Sri Lanka to seriously address the defects in the justice system that make the increase in crime possible and the increase in serious crime inevitable. The most vulnerable place in the system is the absolute separation between the criminal investigation function and the prosecuting function that exists. Without ending this separation, crimes will not only increase but more serious crimes will escape prosecution.
The reasons for such separation are as follows.
1. To end the absolute Gap that exists in Sri Lanka between the criminal investigation function and prosecution function:
The system as it stands now is for the police to investigate crimes and, in serious offences, to present the file to the Attorney General’s department, which may thereafter prosecute the case. If the police do not investigate a crime or do so very badly, there is hardly anything that the prosecutor can do, except to say that there is no sufficient evidence to prosecute. Thus, the ultimate responsibility to prosecute a crime rests with the police. If the vicious circle that produces the ‘no evidence’ argument is to be broken, it is necessary to build a link between the prosecutors and the investigators from the very inception of a case. This would mean that from the receipt of the first complaint up to the finalization of investigations the prosecutors would be informed of the investigations and could take suitable steps to guide them.
2. To bring the Sri Lankan law into line with the developments of other common law countries:
The Sri Lankan practice of absolute separation between prosecutors and investigators is based on 19th century British practices. However in all of the major common law countries, including the United Kingdom, United States, Australia and India, no such separation exists. In these countries the prosecutor’s departments have extension offices in all areas and the police departments coordinate their activities from the very inception of such inquiries. It would be useful for Sri Lanka’s law drafters, legislators and the legal profession as a whole to study the developments that have taken place in other common law jurisdictions. In Civil law (the French system), the link between prosecution and investigation has always existed through the function of the investigation judge.
3. To create professional prosecutors:
The present practice of conducting prosecutions through the attorney general’s department deprives the country of the development of professional prosecutors. Under the present set-up, lawyers in the Attorney General’s department spend a few years in prosecution work and then shift into other work. The Attorney General’s department has many functions and its lawyers shift from one to another. However, the acquirement of professional prosecuting skills takes a long time, as with any other serious profession. Besides, this allows individuals the option to enter and stay in this profession for a long time. In any profession, personal aptitudes and choice are important. This also has an impact on training. If the prosecutors are going to be in this profession for only a short time, there is no purpose investing in training for them. However, modern day prosecuting involves a high level of training and specialization. The mere fact of being an attorney-at-law is no sufficient qualification to be a competent prosecutor of serious crimes.
4. To create institutional habits within the prosecuting system:
Professional habits are made with difficulty. The credibility of any institution of professionals will depend on the way, these habits are formed and transmitted. The present system as it operates throgh the attorney general’s department is not conducive to development of such professional habits and to ensure a continuity to a tradition of proper conduct of prosecutions.
5. To address the problem of increase in crime:
The government admits that there is a vast increase in crime. The only real answer to this is proper criminal investigation and certainty of prosecution for all crimes. The system as it exists now fails to do this. It is an unavoidable fact that the system needs to be corrected.
6. To deal with crimes committed by law enforcement agencies:
It was just few months back that about 26 persons were massacred in the presence of about 60 armed police. Each day bring reports of crimes in which law enforcement officers are involved. Over 30,000 disappearances have put the countries among those with the worst records in the world. It is simply ludicrous to leave these crimes to be investigated by the police alone. The repeated argument that comes up is that there is not enough evidence to prosecute these crimes. The evidence depends on competent investigations, which in turn depend on proper systems of accountability. To allow the present system of separation between prosecutions and investigations to continue is to connive with crimes done by law enforcement agencies.
7. To answer international criticism;
The United Nations’ report of the Working Group on Enforced or Involuntary Disappearances (25-29 October 1999)” (E/CN.4/2000/64/Add.1) issued on 21 December 1999 and presented to the UN Commission on Human Rights Session in April 2000 contains, among other things, the following recommendations:
“(a) The Government should establish an independent body with the task of investigating all cases of disappearance which occurred since 1995 and identifying the perpetrators;
(b) The Government should speed up its efforts to bring the perpetrators of enforced disappearances, whether committed under the former or the present Government, to justice. The Attorney-General or another independent authority should be empowered to investigate and indict suspected perpetrators of enforced disappearances irrespective of the outcome of investigations by the police;”
In a statement from 2000, AHRC summed up the central problem relating to prosecution of those responsible for the disappearances in Sri Lanka as follows:
“It is an elementary principle of Criminal Law that the investigation into crimes determines the prosecutions. Because of the lack of criminal investigations into cases of disappearance in Sri Lanka, the cases cannot be prosecuted. Thus, the first step towards any real prosecutions of these cases must be to begin criminal investigation.
“As the police were mobilized to cause the disappearances, it is not possible to investigate through this apparatus. Thus, an independent body for conducting criminal investigation must be the first step towards the carrying out of prosecutions.”
Thus the failure of the criminal investigation and prosecution system is now a well known fact world-wide. Sri Lanka has even been classified as one of the most dangerous places on earth. There can be no real answer to these criticisms until the defects inherent in the system, particular the absolute separation between criminal investigations and prosecutions, are done away with.
11 January 2001
Hong Kong
