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It has been reported that he will have meetings with Louise Arbour, the U.N. high commissioner for human rights, and Amnesty International. His visit takes place against the backdrop of concern about serious human rights abuses in the country by the British foreign office minister, Kim Howells. Moreover, both Britain and the United States have suspended some aid to Sri Lanka this year, citing human rights abuses as the motivation for this policy. In addition, the World Food Program slapped conditions on food aid to avoid internal refugees from being settled against their will. Indeed, the president faces the threat of international isolation.
The press reported that among his entourage on this mission is C. R. De Silva, the newly appointed attorney general of Sri Lanka. It is the Attorney General's Dept. that has the legal obligation to prosecute all violators of human rights, and the attorney general himself, being a part of this entourage, is very likely to be seen as a manifestation of the conflict of interest of which the Attorney General's Dept. is being accused.
In his former role as solicitor general, the present attorney general played a role at international meetings as a government spokesman denying human rights violations. Consequently, appearing in his new position among the president's men will not earn the country's premier prosecuting agency any credibility.
Meanwhile, on June 1, the International Independent Group of Eminent Persons submitted its first interim report to the president of Sri Lanka. The report contained the observations and concerns of the IIGEP about the President's Commission of Inquiry to Investigate and Inquire into Alleged Serious Violations of Human Rights, or the Presidential Commission.
Among other things, the IIGEP expressed concern about the role of the Attorney General's Dept. as legal counsel to the commission.
It explained its reservations: "The Attorney General's Dept. is the chief legal adviser to the government of Sri Lanka. Members of the Attorney General's Dept. 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 Dept. may find that they are investigating themselves. Furthermore, it is possible that they be called as material witnesses before the commission. We consider these to be serious conflicts of interest, which lack transparency and compromise national and international standards of independence and impartiality that are central to the credibility and public confidence of the commission."
The above critique by the IIGEP points out one of the main causes for Sri Lanka's inability to develop an effective rule of law system in the country. A rule of law system requires that socially harmful behavior be made into crimes through laws enacted by the legislature and that all crimes so enacted by the law be prosecuted without exception. However, in Sri Lanka, prosecution, without exception, is a policy that the main prosecuting agency, the Attorney General's Dept., has been unable to implement. In tens of thousands of cases in which complaints of grave crimes have been made, the department has failed to act. The reason for such inaction is that it has become an institution which is driven, not by primary concerns for law enforcement, but by many other extraneous considerations. Politics, for example, has played havoc with the performance of this most primary institution for law enforcement in the country.
The IIGEP has identified one of the most important elements for the failed rule of law system in the country: the conflict of interests affecting the Attorney General's Dept. If the country is to have an effective prosecuting agency, this problem must be squarely faced and resolved. It is the duty of the country's legislators to address this very serious issue. The comments of the IIGEP, very much backed by general impressions in the country that the Attorney General's Dept. suffers from having to play contradictory roles, requires a parliamentary debate. This problem is the sort of issue upon which legislators are compelled to act. The failure to resolve the conflict of interests bedeviling this important institution contributes to the further degeneration of the collapse of the rule of law in the country.
The Parliament must question the propriety of the attorney general being part of the presidential entourage on foreign visits, particularly when these include meetings concerning Sri Lanka's human rights record. The attorney general cannot be the chief of the prosecuting branch with the responsibility to fearlessly prosecute anyone, including police and military officers accused of human rights abuses, and at the same time be the government's spokesman denying that such abuses occur. It is only the country's legislators that can cure the conflict of interest issue faced by the Attorney General's Dept.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
