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The group said it decided to quit due to the lack of political will on the part of the government to find out the truth about 16 cases of abuse investigated by the Presidential Commission of Inquiry. This serious criticism and very rare gesture of protest by such an imminent group of persons was dismissed by the attorney general of Sri Lanka, the highest law officer in the country, as a "sinister plot" by the group to bring additional human rights monitors to the country.
Such a cheap propaganda approach to serious criticism is a reflection of the sad degeneration of the Attorney General's Department, which has in recent years played the role of propaganda spokesman for the government instead of being the county's chief legal adviser. Under normal circumstances the attorney general would be expected to explain the nature of the criticism to the government and advise the government on the best course of action to be taken from a legal point of view. The consideration of the attorney general should be to preserve the majesty of the law and advise the government to implement the recommendations made by the IIGEP, which would have strengthened the state's capacity to investigate 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 attorney general's officers from the Commission of Inquiry and the immediate implementation of a witness protection law and program -- would create serious problems for the government and undermine the state of impunity that has been prevalent in the country for so many years. This is a political problem. When the country's chief legal officer becomes 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 interest in playing both the role of 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 they appeared aimed at acquitting the accused.
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 could not make 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 "disappearance" cases the department followed a different strategy. Even in cases where the Commission of Inquiry on Forced Disappearances recommended prosecution or further investigation, the department did almost nothing. Critics were told 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 only capable of conducting unsuccessful prosecutions. The recent case of Gerald Perera, who was tortured by police and later murdered, was one such case.
The successful prosecution rate by the department is only 4 percent. The department may blame this on many factors. However, if other factors are likely to lead to unsuccessful prosecution, 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.
It is the Attorney General's Department itself that stands to lose by making comments about sinister plots and such rubbish. There was a time when comments by the attorney general on various issues had an educative value to the people in general and to the legal profession in particular. These statements raised 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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(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. His blog can be read at http://srilanka-lawlessness.com.)
