The Kafkan metamorphosis of Sri Lanka’s Attorney General

Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong

The Attorney General (AG) of Sri Lanka, C R de Silva, on 18 June 2007 issued a letter to the Chairman of the International Independent Group of Eminent Persons (IIGEP) retaliating to two public statements (see appendices 1 & 2) made by the IIGEP on some serious shortcomings in the manner in which the Presidential Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights is being conducted.

The AG claimed that his letter (see appendix 2) was 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”.

The criticisms to which the AG had objected were that the Presidential Commission has suffered needless delays, that the AG’s department has a conflict of interests inScreen Shot 2015-12-16 at 12.01.47 PM its 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 it is not correct to portray the Presidential Commission as being capable of dealing with the human rights violations in the country. The IIGEP had thus recommended that the commission speed up its work, be allowed to use independent lawyers, and not be used to claim that there is more robust monitoring of human rights abuses in Sri Lanka, either through local measures or through the presence of international human rights monitors.

This is a revised version of a statement issued by the Asian Human Rights Commission (AHRC) in 2007, AS-143-2007 (27 June 2007), in response to a letter from the Attorney General of Sri Lanka to the International Independent Group of Eminent Persons who had been invited by the government to observe the work of a presidential commission on recent alleged gross human rights abuses. The group has now withdrawn from Sri Lanka citing the failures of the commission to come up to international standards: see appendices 3 and 4 to this article for its statement and further discussion.

To anyone familiar with the work of the Presidential Commission and the AG’s department, the IIGEP’s criticisms were nothing if not understatements. Several local and international human rights groups have for some years described the rule of law in Sri Lanka as utterly collapsed. The Asian Human Rights Commission (AHRC) had for one clearly stated throughout that the purpose of appointing the Presidential Commission was merely to create an impression before the international community that something was being done about alleged 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 had 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. What is more, it has over the years repeatedly stated that Sri Lanka is now among the most lawless places in the world and that none among the police, prosecution under the AG’s department or the judiciary is willing to do anything about it.

This unwillingness, and the strange reaction of the AG to the IIGEP, is complicated by admissions from the AG’s department that things are in a bad way. A former Attorney General, K C Kamalasabeyson, in a lecture delivered in 2003 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. [Full text of lecture in appendix 5.]

The present AG, while he was solicitor general, headed a committee appointed by the Ministry of Justice, Law Reform and National Integration with the purpose of recommending how to amend the practice and procedure in investigations and courts, with a special focus on curbing crime and eradicating the procedural delays that exist in administering criminal justice in Sri Lanka. This report candidly admits to grave inadequacies in the AG’s Department and recognises the extent of delays in the judicial process:

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.

In light of such observations coming from the AG’s own department, his objections to the criticisms from the IIGEP seemed to be politically motivated, rather than legally grounded. Ironically, his letter thus confirmed exactly what the AHRC and other human rights defenders had been insisting upon for some years.

What is the actual role of the AG?

That the AG wrote his letter to the IIGEP “on behalf of the government of Sri Lanka” raises fundamental questions about his role. Has his role as chief legal advisor to the government and head public prosecutor now also metamorphosed into being a political spokesman and press officer? Under totalitarian regimes, public prosecutors have the job of proving that whatever the government has done or omitted to do is right and for the benefit of the people; the task is political rather than legal. The prosecutor under Stalin’s rule, the show trials in Maoist China and the present-day courts in Burma are all examples of this function.

So has the role of the AG in Sri Lanka substantially changed from that of a liberal-democratic system of government to that of a totalitarian one? And if so, what are the broader implications? These questions are not merely rhetorical. They lead us to important inquiries into the constitutional development of Sri Lanka.

The first constitution of independent Sri Lanka was that of a liberal democracy. However, in 1972 and 1978 there were attacks on its basic principles, especially on the separation of powers. While in 1972 the terminology of separation was retained, the independence of the judiciary was in fact substantially undermined in favour of the legislature. The 1978 Constitution undermined both the legislature and judiciary in favour of the executive.

This constitutional change had a direct bearing on the role of the AG. Since 1978 whoever has taken the post has been expected to do the executive’s bidding, and several have done so quite willingly. Perhaps only the most recent retiree tried to assert the independence of his department to some extent. But 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 those accused of thousands of disappearances in the south alone. Instead of prosecuting, the AG’s department has been assigned to attend meetings of United Nations agencies charged with defend the government against allegations of human rights abuses.

Consequences of the 1978 Constitution for the AG

Under the first constitution of Sri Lanka, the notion of the AG’s duty as chief legal advisor to the government required that the job be done with “complete objectivity and detachment”. That idea was only possible to uphold under a liberal democratic form of government, which has written into its institutional relationships the independence of certain departments that carry out key functions. In that setting, an AG can provide advice to the government based on law, not politics or other external factors. The government is of course under no obligation to accept this advice. However, what this arrangement does not allow a government to do is to instruct or coerce the AG to give the advice that it wants to hear. Twisting the law to make an executive decision appear constitutional or legal when it is not is outside the role of an AG in a liberal democracy.

A former Supreme Court justice, K M M B Kulatunga, published a book in 2004 entitled Disorder in Sri Lanka. One chapter in the book is ‘Attorney General as advisor to the government and as guardian of the public interest’. The author takes for granted that the 1978 Constitution provides a near complete legal provision for the safeguarding of the independence of the judiciary. Earlier, Dr. M J A Cooray wrote a book entitled Judicial role under the constitutions of Ceylon/Sri Lanka, published in 1982, which also assumed that the 1978 Constitution was based on liberal democratic principles and that it protected the independence of the judiciary.

Both authors falsely assumed that because the 1978 Constitution uses the language of liberal-democratic government that it is a liberal-democratic constitution. Nothing is further from the truth. Constitutional provisions cannot be judged by terminology alone. The parts of the constitution must be weighed against one another to understand how they operate in reality.

The provisions of the 1978 Constitution regarding the powers of the executive in fact directly contradict the provisions of the same constitution regarding the independence of the judiciary. As the constitution had as its primary purpose the introducing of an all-powerful executive presidency, the independence of the judiciary could no longer be allowed as envisaged in the first liberal-democratic model. Either the powers of the president had to be subordinated to the judiciary and thus brought within the framework of liberal democracy or the president had to overpower the judiciary and make it subservient to the executive’s interests. The latter is what happened.

Where liberal-democratic government is replaced with authoritarian government, as happened in Sri Lanka after 1978, the objectivity and detachment of an AG also is no longer feasible. But because some constitutional scholars, lawyers, judges and even international experts want to believe that Sri Lanka has some form of liberal-democratic government to which the AG must conform, the AG too tries to live up to this image, including in his letter to the IIGEP:

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 general principle is iterated by everyone writing on the subject; however, what the AG omits to say is that it was radically altered by the 1978 Constitution.

The proof of this is to be found in the work of the AG today. For example, as the “principle legal officer of the criminal justice system of the country” he cannot do anything to prosecute perpetrators of gross human rights abuses, what is the significance of his role? If he relies solely upon police officers, who decide what crimes to investigate and what to ignore, or investigate badly, are they not the ones making the decisions about how the criminal justice system functions? Can he be anything more than a mere bystander who may choose to prosecute in a few cases that fall into his hands, after the real decisions have been made by others?

The means by which decisions have been taken so as to prevent prosecution have since 1978 become quite sophisticated and manifold. One has been through emergency regulations that make crimes guaranteed and investigations virtually impossible. For instance, regulations empower a police or military officer to dispose of dead bodies, so the duty to bring all suspicious deaths to the notice of a judicial magistrate is removed and persons can be disappeared without a trace. Under a liberal democracy, when such regulations are drafted the AG would be obliged to provide legal advice in order to demonstrate that such emergency regulations are contrary to law. However, after 1978 the AG’s department in Sri Lanka did not play this critical role but instead either directly or indirectly assisted in preparing and endorsed such regulations.

Kafkan metamorphosis

From the position under the original constitution of giving legal advice to the government with “complete objectivity and detachment”, since 1978 the AG has been tasked with legitimising the illegal acts of state. The AG’s ardent defence of the Presidential Commission, as well as the participation of officers from his own department in that body, remains a clear demonstration of the extent to which the AG is now serving as an apologist for the executive rather than a legal advisor, thus in his letter to the IIGEP he stresses that

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.

This statement gives rise to the question that if indeed there is such readiness then why do gross human rights abuses persist in Sri Lanka all the time? Or perhaps his statement should be read to mean that in fact no such grave abuses are taking place, that the reporting of such incidents and the state’s failure to address them is exaggerated, and that everything is under control. If indeed this is how it should be understood, as it appears to be (there is no satisfactory answer to the former question), then it is evident that the AG has metamorphosed into a completely different being from that of half a century ago.

The great writer Franz Kafka wrote a story entitled ‘The Metamorphosis’. In it, Gregor Samsa, a travelling salesman, wakes up one morning to discover that he has somehow changed into a gigantic bug. Like him, the AG’s department of Sri Lanka has been transformed from the great role that it was once expected to play into—legally speaking—that of a verminous insect. The only difference between Kafka’s character and the AG is that whereas Samsa recognised his predicament, the AG— outwardly at least—continues to deny his.

Rather than describe Sri Lanka in the fantasy language of liberal democracy, we would do better to talk of it as a failed dictatorship. In 1978 the fantasy was to develop a strong authoritarian power through the executive president. However, even this much could not be achieved. The result today is neither liberal-democracy nor totalitarianism; it is anarchy.

Appendix 1: First statement of the IIGEP

On 1 June 2007, we, the International Independent Group of Eminent Persons (IIGEP), submitted our first Interim Report to the President of Sri Lanka. The report contains our observations and concerns about the President’s Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (the Commission).

We reported to the President that the Commission has so far made hardly any noticeable progress in investigations and inquiries since its inception in November 2006. Moreover, since our formation in February 2007, we have identified and raised a number of concerns with the Commission and the Government of Sri Lanka. We remain concerned that current measures taken by the Government of Sri Lanka and the Commission to address issues such as the independence of the Commission, timeliness and witness protection are not adequate and do not satisfy international norms and standards.

Independence: 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. We are concerned that the Commission’s finances are managed by the Presidential Secretariat. The Commission does not have financial independence enabling it to exercise control of its human resources and operations. In particular, the Commission should be allocated sufficient funds to secure the permanent confidentiality, safety and integrity of its victim and witness protection scheme.

Timeliness: We are concerned that the Commission did not commence even preliminary investigations and inquiries until May 2007, despite being constituted six months earlier in November 2006. To date, internal processes have not been transparent; no detailed work plan has been announced; essential staff have not yet been fully recruited; investigative and witness protection units are not functioning; and significantly, evidence already known to be in the possession of Governmental bodies relating to the cases has not been gathered and transmitted to us. Such unnecessary delays undermine public confidence in the ability of the Commission to carry out its mandate in a timely manner.

Witness protection: We are concerned that there are no adequate victim and witness protection provisions under Sri Lankan law. We are of the view that witness protection is absolutely essential in order to investigate serious violations of human rights that are within the Commission’s mandate. Appropriate legislation that accords with international norms and standards should be enacted and implemented as soon as possible to protect victims and witnesses.

We regret that the Commission still has no functioning victim and witness protection mechanism. In the absence of appropriate legislation, an effective scheme or functioning protection unit, we fail to understand how the Commission could have invited the public, as it did as recently as 14 May 2007, to come forward and give evidence. As the Commission is operating without witness protection legislation, it is unable to guarantee the safety and security of witnesses. Summoning and examining potential victims and witnesses may create fear in their minds about safety and security, deterring them from coming forward to give evidence.

Mandates: The Presidential Warrant limits the scope of the Commission to a retrospective and fact finding role. The core work of the Commission is to obtain information, investigate and inquire into alleged serious violations of human rights arising since 1 August 2005, including 16 specific cases; and to examine prior investigations into these cases. The Commission is required to make findings and report to the President on the facts and circumstances pertaining to each case; the descriptions, nature and backgrounds of the victims; the circumstances that may have led to, or resulted in, those persons suffering such deaths, injury or physical harm; the identities, descriptions and backgrounds of the persons and groups responsible for the commission of deaths and other acts; measures of reparation to be provided to the victims; and recommendations in order to prevent the occurrence of incidents in the nature of those investigated and any other recommendations considered as relevant.

The IIGEP, comprising of 11 Members, has been invited by the President to observe the investigations and inquiries of the Commission, in order to ensure transparency and observance of international norms and standards. The IIGEP does not have a mandate to conduct independent investigations and inquiries; nevertheless, we are open to all persons who wish to provide information and evidence on the cases under review by the Commission. Although we are obliged by the Presidential Invitation to transmit third party information to the Commission, it would not be right for us to disclose any information without the consent of the third party, or which may impair the safety or security of such third parties until we are satisfied that effective, functioning and credible witness protection measures are in place.

We regret that public statements from State officials are creating the misleading impression that the Commission and IIGEP have wide mandates and powers and the resources to address ongoing alleged human rights violations in Sri Lanka. This is not the case. In the current context, in particular, the apparent renewed systematic practice of enforced disappearance and the killings of Red Cross workers, it is critical that the Commission and IIGEP not be portrayed as a substitute for robust, effective measures including national and international human rights monitoring.

P N Bhagwati

Chairman, IIGEP

11 June 2007

Appendix 2: Second statement of the IIGEP & response of the AG

Further to our previous public statement of 11 June 2007, we, the International Independent Group of Eminent Persons (IIGEP) are concerned that the conduct of the President’s Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights (the Commission) is inconsistent with international norms and standards. Failure to take corrective action will result in the Commission not fulfilling its fact-finding mandate in conformity with those norms and standards.

Central to our concerns is the role of the Attorney General’s Department in the Commission.

On 27 February 2007, we raised these concerns with the Chairman of the Commission, stating that the conflict of interest arising from the involvement of the Attorney General’s Department in the Commission compromises national and international principles of independence and impartiality that are central to the credibility and public confidence of the Commission. We urged the Commission to reconsider the role of the Attorney General’s Department and to appoint independent counsel in its place. On 12 May 2007, the Commission conceded that the IIGEP’s concerns of a conflict of interest were valid. This understanding was confirmed in writing by the IIGEP on 13 May 2007.

Contrary to this understanding, on 14 May 2007 the Chairman of the Commission publicly announced that the Attorney General’s Department was to make a statement outlining the nature of the case currently under investigation and would lead evidence of witnesses. Despite further representations by the IIGEP on this issue, to date the role of the Attorney General’s Department remains unchanged.

During the initial sessions of investigation and inquiry, conducted between 14 and 29 May 2007, the IIGEP observed examples of a lack of impartiality. Prior to the presentation of any evidence, when publicly outlining the case, counsel from the Attorney General’s Department stated as fact matters which are controversial in the case. Furthermore, the witness was improperly led, material questions were not asked by the counsel from the Attorney General’s Department and information relied on by the witness and the Attorney General’s Department was not made available to the IIGEP. The Commission does not seem to have taken sufficient corrective measures to ensure that its proceedings are transparent and conform with international norms and standards of independence, impartiality and competence.

Throughout these initial sessions, the Commission heard one witness’ full testimony and part of a second witness’ testimony. Taking evidence in this manner will not, in our opinion, reveal the information and evidence necessary to identify perpetrators of human rights violations and enable the Commission to achieve its mandate in a timely manner.

P N Bhagwati

Chairman, IIGEP

15 June 2007

Response from the AG

In November 2006, based on a previously agreed set of terms of reference His Excellency the President took steps to invite eleven (11) eminent persons to form the ‘International Independent Group of Eminent Persons’ (IIGEP) to observe investigations and inquiries due to be conducted by the Commission of Inquiry (COI) established to investigate and inquire into alleged serious violations of Human Rights occurring in Sri Lanka since 1st August 2005. The mandate of the IIGEP is to observe and comment on the investigations and inquiries conducted by the COI, with regard conformity with international norms and standards. The Government of Sri Lanka is pleased to note that, the international community commenced nominating eminent persons to serve in the IIGEP, only after they were satisfied regarding the terms of reference of the COI and the IIGEP.

Following invitations having been extended to the international community, nominations were received, and the International Independent Group of Eminent Persons was established on the 10th of February 2007, with the last nomination being received on the 9th February 2007. Thus, the Commission could effectively commence their work only from the 12th of February 2007, on which date the Commission held its first plenary meeting with members of the IIGEP. Had the COI commenced investigations and inquiries prior to the establishment of the IIGEP, the international observers could not have observed the functioning of the COI.

The Government is aware that, the COI spent its initial months for the development of internal systems, rules of procedure and recruitment of necessary staff. Now that such internal requirements have been met, the government is pleased to learn that the Commission is in a position to proceed to investigate and inquire into cases on the schedule of the warrant of the COI. Since early May 2007, the COI has commenced investigating into the incident involving the murder of 17 workers of ACF.

The Government of Sri Lanka remains committed to provide necessary financial and other resources to ensure that the COI functions smoothly and efficaciously giving effect to its mandate. Already a considerable sum of money has been allocated by the Presidential Secretariat to the COI. Up to now the Presidential Secretariat has allocated to the Commission the entire sum of money requested by the Commission based on an approved budget. Once the COI develops and submits to the government its budget for the remaining period, the Presidential Secretariat will provide necessary funds to the Commission for its future activities. The Government of Sri Lanka remains totally committed to fund the victims and witnesses assistance and protection programme of the Commission. Furthermore, the government has accelerated an initiative to enact national legislation pertaining to providing assistance and protection to victims and witnesses.

With the view to providing the Commission greater operational flexibility, the government has initiated a process aimed at amending the Commissions of Inquiry Act. The proposed amendments are to go before Parliament very shortly.

The Government of Sri Lanka is of the view that, in view of the terms of reference of the IIGEP, it is inappropriate for the IIGEP to propose the setting up of an ‘international monitoring mechanism’ to address ongoing alleged Human Rights violations. The mandate of the IIGEP is to observe the functions of the COI and comment on compliance with international norms and standards, and to also propose correctional action to be taken by the COI. The Government expects that the IIGEP would make observations and recommendations in terms of its mandate as contained in the letters of invitation and accepted by Members of the IIGEP.

The Government of Sri Lanka wishes to avail itself of this occasion to reiterate its expectation that at least one out of the eleven eminent persons be present in Sri Lanka to observe the investigations and inquiries of the COI.

Appendix 3: Presidential Commission’s public inquiry process so far falls short of international norms and standards

IIGEP Statement, 6 March 2008

In November 2006, H.E. the President of Sri Lanka appointed a Commission of Inquiry (the Commission) to investigate and inquire into 16 incidents of alleged serious violations of human rights that arose in Sri Lanka since 1 August 2005. The President subsequently also invited eleven persons of international repute to form the International Independent Group of Eminent Persons (the IIGEP)i. The IIGEP was called to observe the work of the Commission and to comment on the transparency of its investigations and inquiries, and their conformity with international norms and standards. The President also invited the IIGEP to make recommendations for redress. The IIGEP was established when the last Member’s nomination was approved by the Government of Sri Lanka in February 2007. It held its fifth quarterly plenary meeting in Colombo on 17-19 February 2008, in order to review its Members’ observations and conclusions over the period from mid-December 2007 to mid- February 2008.

Observations on the Public Inquiry Phase

The most important development since the IIGEP’s last public statement, dated 19 December 2007, is the commencement of the Commission’s public inquiry phase on 5 January 2008. The IIGEP welcomes this move by the Commission. During the November 2007 Joint Commission/IIGEP Session, the Commission advised the IIGEP that there would be no public inquiry until Parliament passed the amendments to the Commissions of Inquiry Act (1948). (Subsequently, the “Commissions of Inquiry (Amendment)” Bill was passed on 7 February 2008. The amendments related primarily to the investigative powers of a Commission and the ability of a Commission to sit without its full membership.) In contrast with the in-camera investigations the Commission has been carrying out so far, public inquiries are expected to be held in the full view of any interested parties and particularly those most concerned, the surviving victims and the families of victims.

The IIGEP has observed the poor attendance of interested parties, such as the families of victims and civil society, in the sessions of inquiry and questions the level of publicity the Commission has given to the public inquiries. The notices in the newspapers were relatively small in size and need to be recurrent or continuous to achieve sufficient impact. It should be possible for representatives of the Commission to make personal contact with interested parties, particularly the surviving victims and the families of all victims, to ensure that these people are made aware of the intended hearings. The IIGEP has also suggested that the Commission consider holding public inquiries outside Colombo, closer to the areas where the incidents under review took place, in order to improve the accessibility of potential witnesses to the Commission.

The Commission has, as of 17 February 2008, held six public inquiry sessions into the case of the killing of five youths in Trincomalee on 2 January 2006. During these sessions, three witnesses appeared before the Commission.

The Commission summoned the Trincomalee Magistrate to testify in his capacity as the investigating Magistrate who attended the crime scene on 02 January 2006. Following intervention from the Judicial Services Commission, the Registrar of Trincomalee Magistrates Court attended the Commission of Inquiry session in his place and read out the contents of the Magistrate’s report.

The IIGEP is concerned that this intervention prevented the Commission from hearing direct testimony from the Magistrate regarding police action at the crime scene and his initial evaluation and instructions.

In the sessions of 5 and 7 January 2008, the Police Inspector, responsible for carrying out the original investigation, appeared as a witness and during his testimony made statements about the Police and the Armed Forces present at the scene around the time of the incident. During the inquiry of 10 January 2008, the Judicial Medical Officer testified that, in his opinion, if one of the deceased victims had been brought to the hospital immediately after the attack, he could have been saved.

The IIGEP emphasizes the point that all the issues examined by the Commission should have been considered during the original criminal investigation process. It is clear that the original investigation was flawed and incompetent. Specifically, the quality of statements taken from police and service personnel was inadequate in detail and depth, and reflected negatively on the competence and thoroughness of those in charge of the original police investigation. It appears that little or no effort was put into tracing and identifying eye witnesses from a number of local citizens known to have been in the vicinity on the evening of the incident causing the death of the five youths in Trincomalee. The Commission needs to ask the question: why were the flaws in the original police investigations undetected, ignored, or possibly abetted by the responsible Government authorities? In the search for truth and justice in this case, it is imperative that the testimony of the security forces personnel and police witnesses heard by the Commission to date is fully and adequately exposed and tested. The general public, surviving victims, family representatives and others must have the opportunity to judge the credibility of some of the witnesses. It is also essential for them to be able to observe the working of the Commission and be encouraged to do so.

The Commission, in response to the IIGEP’s last public statement, stated that “no agency or individual shall be excluded from investigation or inquiry if such an investigation or inquiry is merited on the basis of material before the Commission”. The Commission has so far failed to implement this assurance in practice with State bodies and agencies.

The public hearing phase was suspended on 14 January 2008 and did not resume until 15 February 2008. The IIGEP is once again concerned about the slow pace of inquiries, considering that the Commission has already heard and gathered testimonies from these same witnesses in its in-camera investigation phase.

The IIGEP has informed the Commission about several material witnesses who have approached the IIGEP and expressed their willingness to give evidence to the Commission, from as far back as in August 2007. The IIGEP has urged the Commission to take concrete steps to include these critical witnesses in the current inquiry and is seeking to agree with the Commission on procedures that would permit this to happen, while protecting the safety of witnesses.

The Commission has indicated that the inquiry stage would yield more positive developments. Yet, to date, and notwithstanding the spirited efforts of the Commission’s independent legal counsel of the Unofficial Bar in leading the questioning, its inquiries have largely been conducted in the same manner as the Commission’s investigation sessions and have, so far, proved largely ineffective in unearthing useful or actionable evidence affecting the current case.

Witness Protection

Protection for witnesses is indispensable for the success of the Commission. The IIGEP observes that sufficient efforts are still not being made to ensure the protection and safety of all those involved with the inquiries and investigations of the Commission. Without a comprehensive system of victim and witness protection, and demonstrated Government competence and willingness to implement such a system, critical witnesses are unlikely to come forward. Perhaps more than any other factor, this impediment inhibits any effective future pursuit of the filing of indictments, convictions, and appropriate accountability for the alleged grave human rights violations under review.

As recently as January 2008, the IIGEP was dismayed to find a newspaper article, citing a source within the Commission, identifying the possible whereabouts of witnesses. The IIGEP has stated in writing to the Commission that, similarly to a previous instance, the publication of such information about witnesses, undermines the purpose of the Commission’s work and constitutes a potentially dangerous breach of confidentiality. The cornerstone of all witness protection programs is confidentiality, without which the integrity of the program can be permanently damaged.

Financial Independence

Issues around the Commission’s insufficient budget and lack of financial independence have recently re-surfaced in the media. The IIGEP already commented on the Commission’s lack of financial independence in its 11 June 2007 public statement. The IIGEP further brought the matter to the attention of the President in a meeting in August 2007. The IIGEP can only reiterate the vital importance that the Commission be sufficiently funded on the one hand, and that it hold its own purse strings on the other. Financial independence is vital for the successful functioning of the Commission and its capacity to provide effective witness protection and assistance.

Conclusion

The IIGEP has decided that it will terminate its operation in Sri Lanka. It has taken this decision after due consideration and for fundamental reasons. The President charged the IIGEP to observe the proceedings of the Commission of Inquiry, to offer suggestions, and to assess the conduct of these proceedings against international norms and standards. The Eminent Persons conclude that they have accomplished all that is possible within the constraints of the prevailing situation. They no longer see how they can contribute further to the protection and enhancement of human rights in Sri Lanka and have regretfully decided to bring to an end their activities in this country.

The Eminent Persons have all come to Sri Lanka a number of times and met a large variety of personalities involved in the process of protection and promotion of human rights. They have visited different locations in the country where alleged violations have taken place and have diligently followed the proceedings of the Commission. The IIGEP representatives, a group of highly qualified Assistants to whom the Eminent Persons have delegated authority, have been following the investigations and inquiries on a full-time basis in Colombo and in the field. The IIGEP is satisfied that the activities and reports of their representatives have met the highest standards of quality and professionalism.

In keeping with both the letter and the spirit of its mandate, the IIGEP has made substantial suggestions and observations – in its Interim Reports to the President and in direct contact with the Commission and with representatives of the Government of Sri Lanka (GoSL). Most of these suggestions have been ignored or rejected. Official correspondence directed to the IIGEP has too often been characterized by a lack of respect and civility. While the IIGEP has repeatedly been accused of going beyond its mandate and of interfering with national decision-making, this has never been its intention or the reality. The Eminent Persons have always respected the authority of their interlocutors, be they commissioners, judiciary, parliamentarians, civil servants or ministers, and the limits of their mandate.

The IIGEP’s next and concluding report to the President and subsequent public statement will detail the Eminent Persons’ observations and conclusions, substantiated by the evidence available. In summary, the IIGEP concludes that the proceedings of inquiry and investigation have fallen far short of the transparency and compliance with basic international norms and standards pertaining to investigations and inquiries. The IIGEP has time and again pointed out the major flaws of the process: first and foremost, the conflict of interest at all levels, in particular with regard to the role of the Attorney General’s Department. Additional flaws include the restrictions on the operation of the Commission through lack of proper funding and independent support staff; poor organisation of the hearings and lines of questioning; refusal of the State authorities at the highest level to fully cooperate with the investigations and inquiries; and the absence of an effective and comprehensive system of witness protection.

The Eminent Persons are fully aware of the overall context in which the Commission is operating, which makes its activities, however diligent, incapable of eliciting the kind of facts that would be necessary to ensure that justice is seen to be done. Underlying it all was the impunity that had led to the prior fruitless investigations that, in turn, led to the setting up of the Commission. There is a climate of threat, direct and indirect, to the lives of anyone who might identify persons responsible for human rights violations, including those who are likely to have been committed by the security forces. Civilian eye witnesses have not come forward to the Commission. Security forces’ witnesses preferred to make themselves look incompetent rather than just telling what they know. Accordingly, it is evident that the Commission is unlikely to be in a position to pursue its mandate effectively. These inherent and fundamental impediments inevitably lead to the conclusion that there has been and continues to be a lack of political and institutional will to investigate and inquire into the cases before the Commission. The IIGEP is therefore terminating its role in the process not only because of the shortcomings in the Commission’s work but primarily because the IIGEP identifies an institutional lack of support for the work of the Commission.

Beyond these considerations, the IIGEP is of the opinion that there has not been the minimum level of trust necessary for the success of the work of the Commission and the IIGEP. The IIGEP model may be unique. However, experiences associating national and international persons and processes in the past, with the view to harmonizing national practice with international norms and standards, have always relied on confidence and trust for their success. The IIGEP does not see how its continued engagement with the process could change this situation. The Eminent Persons hope, nevertheless, that their concluding observations and recommendations will assist the Commission of Inquiry, the Government of Sri Lanka and all the courageous people of Sri Lanka to achieve the full implementation of the rule of law and respect for fundamental human rights.

The IIGEP consists of the following 11 Eminent Persons: Justice P.N. Bhagwati (India) (Chairman), Judge Jean-Pierre Cot (France), Mr. Marzuki Darusman (Indonesia), Mr. Arthur E. “Gene” Dewey  (USA), Prof. Cees Fasseur (Netherlands), Dr. Kamal Hossain (Bangladesh), Prof. Bruce Matthews (Canada), Mr. Andreas Mavrommatis (Cyprus), Prof. Sir Nigel Rodley (UK), Prof. Ivan Shearer (Australia) and Prof. Yozo Yokota (Japan).

Appendix 4: IIGEP’s quitting is no surprise, but what next?

Asian Human Rights Commission, AHRC-STM-058-2008, 7 March 2008

The announcement by the International Independent Group of Eminent Persons (IIGEP) that they are quitting the Presidential Commission of Inquiry comes as no surprise at all. The surprise is as to why the IIGEP agreed to be part of this process in the first place. The Presidential Commission was so obviously an eye- wash and the IIGEP was only called upon to give respectability to a very deliberate design to subvert the process of law for which purpose alone this Commission was appointed.

Why the international community and the members of the IIGEP itself were unable to see through this devious scheme at the very outset is a matter that deserves some reflection. Indeed, some reflection on the matter can also throw light on why the international community has so far been unable to have a clear view of what is happening in Sri Lanka and why impunity has become such an entrenched practice within the country. The Asian Human Rights Commission has repeatedly pointed out that impunity in Sri Lanka is a matter of state policy, whether the violations that are dealt with are from the South, North or the East, and that this policy has been entrenched through consistent practice since 1971.

When the state relies entirely on the military and the police for the suppression of all persons and organisations which it believes should be suppressed, the same state cannot pursue a policy that will discourage the military and the police from pursuing their targets as ruthlessly as possible. When the state sanctions, and in fact commands its armed forces to act in the manner it wishes, irrespective as to whether they observe the restraints that are expected to be observed even in the midst of a conflict, the same state cannot be expected to take any credible action in order to ensure that its forces act within the accepted norms and standards. As the former defense minister, Ranjan Wijeratne told parliament, “These things cannot be done according to the law”. In Sri Lanka that short sentence sums up the state policy used for suppressing elements that the state believe should be suppressed, whether they be Sinhalese, Tamils or Muslims.

The very foundation of the law in Sri Lanka has changed for the worse. The 1978 Constitution transformed Sri Lanka into an authoritarian state with the executive president having powers equal to an absolute monarchy. With that the structure and ideology of the state changed. The conduct of all affairs, including those dealing with the conflicts takes place within this framework.

The agents of the international community itself wanted to have a more simplified version of the reality. They treated the Sri Lankan conflict as a simple conflict that, if the Sri Lankan government and the LTTE could agree upon some measures could easily be resolved. In taking this view they failed to understand the complexity of this problem in Sri Lanka, the history of the challenge faced by the rule of law and democracy in the country and the collapse of state institutions.

One particular issue alone can illustrate the naivety with which the international community has regarded the Sri Lankan crisis; this is the issue of the 17th Amendment to the Constitution. The Constitution should be the supreme law of the country if that country is a democracy. From 2005 up to now the government of Sri Lanka has deliberately refused the appointment of the Constitutional Council thereby creating a situation within which the 17th Amendment to the Constitution was relegated to the dustbin. No amount of local and international pressure was able to make any change to this situation. Under such circumstances for the IIGEP or its promoters to think that the Sri Lankan government would take their advice seriously on how to conduct investigations into human rights violations which it has itself directly or indirectly authorised was, to say the least, sheer naivety.

Reading the dispatches from the spokesman for the government in replies to the call for inquiries into human rights violations leaves no doubt that the government was fully aware that to conduct inquiries into military operations and at the same time continue to allow them free reign were two incompatible strategies.

What is needed is a comprehensive understanding of the problem of Sri Lanka which is not just an ethnic crisis. It is a total crisis of the entire legal fabric of the country and the political system. What is required from both local and international initiatives is to create space to deal with the entire issue through a comprehensive plan of action based on an understanding of the actual situation.

This is not just a task that the democratic movement and the human rights community face in Sri Lanka only similar problems are faced in many places around the world. An attempt to understand the Sri Lankan crisis in depth may help to find more serious approaches to deal with problems which are matters of life and death, not only to large sections of the population but to a nation as a whole.

We hope that the bitter lessons learned by the IIGEP in Sri Lanka will lead to humble reflections about where the very strategy itself was flawed. A critical review by those involved in the IIGEP as well as those others who have watched this extremely sad episode can help in the deepening of the understanding of the theoretical nature, as well as the practical nature in dealing with the issues of justice in conflict situations. Mere calls to end impunity or making generalized recommendations are of little use. Concrete studies leading to specific suggestions that can form the basis for realistic plans- of-action is what is needed, not only to deal with the acute crisis in Sri Lanka but also to deal with other similar situations.

Appendix 5: Balancing rights of the accused with rights of the victim

The 13th Kanchana Abhayapala Memorial Lecture by Attorney General K C Kamlasabayson, 2 December 2003 (Published in The Island, 5 February 2003)

It is my privilege to deliver the Kanchana Abhayapala memorial lecture 2003. Although, I cannot match the intellect of many of the eminent speakers who have delivered the said lecture in the past, I accepted with humility the invitation extended to me by Sarvodaya, not only because the suggested topic was something that appealed to me as an extremely important one, particularly in today’s context, but also because I could not refuse the request that was made by an organization which has always espoused the cause of justice and fair play. May I therefore take this opportunity to thank the organisers for their kind invitation.

As a lawyer, it is only natural that my presentation should be based on law. However, I also wish to approach it on a broader basis, i.e. from the point of view of the society in which we live and the practical realities that surround our criminal justice system.

I must emphasise that the views I express today are personal to me and I do so, prompted by the increasing in the crime rate and the lack of sufficient and effective provisions in our law in relation to victims of crimes.

I do not consider it necessary or relevant to bring out the legal distinction between a suspect and an accused. Suffice to say that whenever reference is made to either of these persons there is invariably a victim.

A person who is suspected or accused of a crime enjoys several constitutional and legal protections. These are contained in Chapter III of our Constitution and several other legislative enactments including the Code of Criminal Procedure Act, No. 15 of 1979.

In Chapter III of the Constitution, which deals with fundamental rights, article 13 provides that no person shall be arrested except according to procedure established by law and that such person shall be informed of the reason for his arrest. It further provides that any person held in custody or detained shall be brought before the judge of the nearest competent court and shall not be further held in custody except upon and in terms of the order of such judge. A person charged with an offence shall be heard in person or by an attorney-at-law at a fair trial by competent court. This article also sets out that every person shall be presumed innocent until he is proved guilty.

On the other hand the Code of Criminal Procedure Act contains several safeguards accorded to the accused commencing from his arrest to the conclusion of the trial. In this process the law also contains several provisions that would ensure a fair trial for the accused. In other words in the context of the provisions both in the constitution and the Code of Criminal Procedure Act, a fair trial would mean a trial often tilted more in favour of the accused than the victim.

A victim means a person who has suffered harm, including physical or mental injury, emotional suffering, or economic loss through acts or emissions in violation of the criminal laws. This definition was formulated at the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. This definition when expanded would include a multi-victim perspective. That is to say where appropriate it includes the immediate family members or dependent of the direct victims and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

Today I wish to deal with the direct or immediate victims and those who suffered as a result of their intervention. In our system the criminal justice process involving the arrest, trial, conviction and punishment of the accused have little relevance to the victim. Action is taken in the name of the state and not on behalf of the victim. There are no enforceable provisions in the constitution that are designed to effectively protect a victim of crime.

In this background when one embarks on balancing the rights of the accused with the rights of the victim in the administration of justice, one could see an imbalance with the scales tilted more in favour of the accused than the victim.

The study of victimology involves both the study of the victim and of the offender. There is much work being done in this field by many organizations. But there is still much doubt as to the extent to which it has helped or assisted the victim in many jurisdictions. I was intrigued by the fact that the word “victimology” does not appear in the Oxford English Dictionary or in the encyclopedia; nether did I find this word in the modern Encarta. Perhaps this reflects the negative attitude of the state organisations towards victims of crime.

Let us examine the rights of a victim.

It is the responsibility of the state to protect and safeguard the property and persons of every citizen. Where a crime is committed against a citizen, it could be said that the state has failed in effectively discharging its responsibility. The rights of a victim must naturally flow from this failure. It is in this context that the state has a greater responsibility towards such a victim.

The victim has the right to demand from the state that the offender be punished and the state must ensure that there is an effective and efficient mechanism to meet this end. This cannot be achieved by merely enacting laws. 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 instance 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 is not sufficient. The system itself has to be refined and fine tuned at all levels. In our country we have an overloaded court system and it is to the credit of our judges that the system has not been short circuited and exploded due to the overload. The overload is clearly due to the increase in the crime rate, correspondingly the increase in the crime rate is due to the shortcomings in the law enforcement system of the country. There is a total erosion of the rule of the law. It is this system that requires to be refurbished.

It is the right of the victim to see that there is speedy justice but I have pointed out that our courts are overworked. It is almost impossible to provide for speedy justice.

These are some of the general observations. They all clearly point towards the pathetic plight of a victim of crime. Often he is victimised at two stages. First in the hands of the offender and then in the hands of the state agencies. This agony continues when he repeatedly visits the court. There are several postponements. In the witness box he is often harassed by the counsel. His suffering continues unabated. Having suffered in the hands of the principle offender, the victim instead of being comforted and protected by the state machinery is in fact harassed. This feature makes the balancing exercise difficult if not impossible. In this background one could identify a clear duty on the part of the state to ensure that there is no secondary victimization.

How could this be achieved?

Let me repeat the proverbial golden thread that runs through the fabric of our legal system. The accused is presumed to be innocent until proven guilty. By this rule the law focuses its attention on the accused whilst placing a heavy burden on the prosecution to prove its case beyond reasonable doubt. The law in its wisdom has concluded that even though many who are guilty may be freed, no innocent person should be wrongly convicted; thus, the presumption of innocence. Yet, this presumption in its application, if not properly approached, could lead to injustice, not for the offender, but for the victim. By saying this I am not for a moment seeking to dilute a finer principle of law for the sake of securing a conviction at all cost. What I wish to demonstrate is that this principle of law with no corresponding rights for the victim to seek effective justice for the wrong done to him has invariably resulted in miscarriage of justice.

Law and order are integral parts of a civilized society. The victim plays a vital role in the administration of justice. His role is twofold: (a) it is personal, for the reason that it is the victim who had suffered in the hands of the offender and is therefore entitled to seek justice for the wrong done to him; (b) the victim, by exposing the wrong done to him through the established mechanism helps the state to perform its duties of maintaining law and order.

When a crime is reported, the state in the discharge of its duty becomes the party whilst the victim assumes the role of a witness. Official action taken against the criminal by the state is taken on behalf of the republic, not the victim. A person whose interests are damaged by a criminal must initiate a civil suit to recover damages. A New York Times book, Crime & Criminal Justice, explains this as follows:

If I am hit on the head by a robber, or if my television set is stolen in a burglary of my home, the fine, imprisonment or other punishment imposed on the offender only satisfies my vague need for revenge and for social order. So far as getting my doctors bill and hospital expenses paid, or getting a new television set, the state’s official action is irrelevant.

In our adversarial system a victim passes through four stages. Firstly, a crime is committed against him. Secondly, he reports the crime to the police. Thirdly, the crime is investigated and fourthly, if there is evidence the offender is prosecuted. At all these stages the victim has a role to play.

At the first stage the victim is exposed to the crime and is normally pushed to the second stage where he or some other person is required to make a statement to the police. The investigations commence thereafter. Let us pause at this stage. As I have already pointed out, criminal investigations are governed by the Code of Criminal Procedure Act. The victim is invariably the complainant. It is he who activates the legal process. Investigations are carried out by the police. There is unfortunately a perception, often justified, that the secondary victimization of the victim commences at the stage he visits the police station to make a complaint.

What is important is that not only his complaint should be recorded promptly, but the investigations should commence without undue delay. It is in this context that the state must take remedial steps to enhance the competence and skills of the police officers in the field of investigations. Furthermore, the scientific and technical developments should be introduced into our system. Very often we hear delays in the Government Analyst’s Department. This department is overburdened and requires to be better equipped. Above all, it is important that the law enforcement agencies involved in criminal investigation understand and appreciate the role of a victim and his/her sufferings.

We often speak of the police force. One must not loose sight of the fact that it is a service and not a force. I am aware that there are guidelines. But this is not enough. The officers concerned must consciously believe that it is their duty to protect and safeguard the interest of the victim.

Victims of torture in the hands of law enforcement authorities often find it difficult to take their cases forward. There is an increase in the incidence of torture and is something that must necessarily be dealt with effectively by the state. Investigations into such allegations should be left in the hands of a specialized and independent unit and every endeavour must be made to ensure speedy trial.

There are several unsolved crimes. I do not for a moment contend that every crime that is committed could be solved. A clever criminal may not leave any evidence and unsolved crimes are nothing new in the society. But what is alarming is the increase in the number of such cases. From a layman’s point of view, some of the crimes, particularly murders that remain unsolved could have been solved. This is not being done either due to the ineffectiveness of the investigators or other reasons best known to them. It is in such instances, that the society loses faith in the system.

Once the investigations are concluded, depending on the gravity of the crime, the case is referred to the Attorney General’s Department. Here again there is a backlog and a further delay. My several attempts to increase the cadre have consistently failed. But this excuse is of no consolation to a victim who has suffered. We are seeking to overcome logistical problems by periodically assessing the workload and the disposal rate and by establishing specialized units to expedite at least certain categories of cases.

I do not consider it necessary to frame laws to remedy the defects that I just pointed out. The remedy lies in the hands of the law enforcement authorities and the state. It is extremely necessary that steps are taken to ensure that our investigators acquire the required skills and techniques and above all realise the importance of their role in civil society.

The final stage is where the offender is prosecuted. As I have already pointed out, our courts are overworked. At another forum I expressed the view that unless there is a drastic increase in the number of judges, the secondary victimization of the victim would continue unabated. Today, there are literally hundreds of cases that come up everyday in a magistrate’s court. On the other hand there are high courts where cases are postponed by ten to twelve months. No amount of legal reform could remedy this situation. What is important is to ensure speedy justice by establishing more courts. The constitution provides for the appointment of Commissioners of High Court as a temporary measure. This is an important provision which should be invoked to meet the present crisis. It may also be appropriate to invoke this provision for the purposes of expeditiously disposing cases of torture and sexual offences.

The legal ethics demands that the prosecutors should not meet and discuss their cases with the complainant. The complainant and the other lay witnesses are not permitted to peruse the statements made by them to the police. Whilst I see the danger in witnesses being coached, in view of the delays that are experienced in our courts, provision should be made to enable the witnesses to refresh their memories by perusing the statements made by them. This may not appeal to the defence lawyers. Yet, in the present context, where it takes years for a trial to come up in court there does not appear to be a viable alternative. Surely, an offender cannot benefit through the lapse of time and in may event on witness should be put to a memory test for the purposes of securing an acquittal.

An aggrieved party including a victim is permitted legal representation in a court of law. This was confirmed by the Supreme Court. However, in a criminal trial the victim’s representative plays a minimal role and merely assists the prosecutor. It may well be that if an active role is granted to the counsel of the victim, the victim’s counsel and the prosecution could be at cross purposes. However, in my view, the victim’s counsel should be permitted, as of right, to make submissions on the question of sentence.

It is the right of the victim to give evidence without fear. Our courts have always protected this right whenever complaints are made. However, it is the responsibility of the state to further this right by providing modern methods, e.g., adequate legal provision for examination and cross-examination of victims of sexual abuse through modern methods. This has proved to be very effective in the west where in child abuse and rape cases victims are not physically present in court but are examined through electronic and multimedia. This has become necessary for the reason that despite the safeguards contained in the Evidence Ordinance, complainants, mainly victims of sexual abuse and rape are often harassed by the defence lawyers in cross examination.

Very often the accused is acquitted due to lack of evidence and the law says that he cannot be charged again for the same offence. An attempt is being made in England through the Criminal Justices Bill 2002 to enable the appellate courts to review such cases, provided that there is new and compelling evidence and that in all the circumstances, in the interest of justice, the court considers that a re-trial should be ordered. We too should seriously consider enacting similar provisions so that an accused does not get away merely due to initial lapses in the investigations.

Another important feature that requires consideration is the need for an efficient witness protection scheme that would ensure that witnesses are not intimated and threatened. No doubt this would involve heavy expenses for the state and amendments to the law. I will only pose a simple question. Is it more important in a civilized society to build roads to match with international standards spending literally millions of dollars rather than to have a peaceful and law abiding society where the rule of law prevails?

In my presentation, I have in no way sought to diminish the rights of the offender. Criminal justice is permeated by the notion of balance. The system is meant to ensure that an innocent suspect is not unfairly prosecuted or convicted. On the other hand it is designed to strike a balance, in that the interest of the victim in having the perpetrator prosecuted and punished is protected. What I wish to emphasize is that unless the object of our criminal justice system is properly translated into reality, viz., in that the actual offender is expeditiously tried and punished, there could never be a just society in which law and order could prevail.

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