FOR IMMEDIATE RELEASE
AHRC-STM-104-2008
April 24, 2008

A Statement by the Asian Human Rights Commission

SRI LANKA: IIGEP episode, AG's department becoming prosecutor and defender at the same time

The hottest topic in Sri Lanka this week is the press statement given at a meeting by the International Independent Group of Imminent Persons (IIGEP), in which the chairperson, Justice P.N Bhagwati, a former chief justice of India, Sir Nigel Rodley, a reputed international lawyer, and Professor Yozo Yokota, a former member of the UN Sub-Commission on the Promotion and Protection of Human Rights (2000-2006), participated. The press statement explained the reasons for the IIGEP’s abandonment of their monitoring role. The abandonment was a result of their disappointment in the face of the absence of political will on the part of the government to find out the truth about the 16 cases of gross abuses of human rights investigated by the Presidential Commission of Inquiry (CoI). This serious criticism, and a very rare gesture of protest by the quitting of the role by such an imminent group of persons was dismissed by the Attorney General of Sri Lanka, who holds the position of the highest law officer in the country, as a ‘sinister plot’ by the IIGEP to bring human rights monitors to the country.

Such use of a cheap propaganda approach to the criticism of the IIGEP by the country’s Attorney General is itself a reflection of the sad degeneration of the Attorney General's Department, which had, in recent years, played the role of a propaganda spokesman for the government, instead of being the county’s chief legal advisor. Under normal circumstances the Attorney General would have been expected to explain the nature of the criticism to the government and to advise the government on the best course of action to be taken from a legal point of view. Under those circumstances the consideration of the Attorney General would have been to preserve the majesty of the law and to advise the government to implement the recommendations made by the IIGEP, which would have strengthened the investigative capacity of the state into all crimes, which in turn would improve the rule of law in the country. However, the Attorney General preferred, or perhaps was tasked, to engage in damage control against such serious criticism rather than being worried about the rule of law. The truth, however, is that implementation of the recommendations of the IIGEP for the withdrawal of the AG’s officers from the CoI and the immediate implementation of a witness protection law and programme, would create serious problems for the state of impunity that has been prevalent in the country for so many years. That is a political problem and when the country’s chief legal officer has to be a preserver of impunity that is, indeed, a serious downfall of the legal system.

The argument of the Attorney General is that his department sees no conflict of interests in playing both the role of the prosecutor and defender in the same case. This indeed, is no surprise. The department in the past has prosecuted many cases in such a way that the alleged accused can finally be acquitted. One glaring case was the prosecution of the Bindunuwewa massacre. The persons who should have been prosecuted were not, and those who were, were acquitted. If the Attorney General's Department did not have a strong case in such an infamous incident, which became a local and international scandal, it should not have prosecuted anybody. When the prosecution started the local and international community felt that some action had been taken to provide justice. However, by the time the external pressure ceased the country discovered that, after all, the Bindunuwewa massacre victims, like so many other victims, were destined to be denied justice.

In the disappearances cases the department followed a different strategy. Even in cases where the commissions of inquiry on forced disappearances recommended prosecutions to be undertaken or further investigations be made with a view to prosecution, the department did almost nothing. The critics were told that there was a special unit dealing with this matter within the department. However, only a few cases were filed and some of these were filed after so much delay that by the time the cases came up for trial the chief witnesses, who were mostly the parents of the disappeared, were already dead. Now similar methods have been developed regarding the prosecution of torture. Some time ago a considerable number of cases were filed. Now gradually, in most cases the accused are being acquitted. Conversely to its proper function, the department is proving itself capable of conducting unsuccessful prosecutions. The recent case of Gerald Perera was one such case. In any event, the successful prosecution rate by the department is only 4 percent. The department may blame this on other factors. However, if other factors are likely to lead to unsuccessful prosecutions, at the end of the day the better course is not to prosecute at all. If the failure of the prosecution is due to possible errors of fact, or law, made by the court then it is the duty of the Attorney General to appeal. However, even this happens only very, very rarely.

If anyone is to be the loser by comments about a sinister plot and such rubbish it is the Attorney General's Department itself. There was a time when the comments of the Attorney General on various issues had an educative value to the people at large and to the legal profession in particular. These statements were an occasion to raise important legal issues that concerned the government and the nation. What is there to learn from such talk about sinister plots that a group of imminent persons, who were invited by the president himself, are supposed to be involved in? That the former chief justice of India is accused of engaging in a sinister plot by the Sri Lankan Attorney General is a day of shame for Sri Lanka.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.