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The accused, B.A. Abeyratne, is the principal of Ananda College, a well-known Colombo school. He was indicted in 2008 for providing forged documents to a police officer involved in an inquiry regarding the admission of children to the school. Some of the documents were alleged letters written to a former deputy education director but were, in fact, false documents.
The request to withdraw the indictment was made on the basis of an affidavit filed by the accused, in which he stated that he would resign from the school and expressed regret over damage caused to the school by his actions. Also, a number of persons had written to the attorney general asking him to exonerate the principal, considering his service to the country, to the school and to the sphere of education.
On the basis of this affidavit and the letters, Attorney General Mohan Peiris made the request for the withdrawal of the criminal indictment, despite the fact that there was sufficient evidence to continue with the prosecution.
Regardless of the fact that the High Court judge refused this request and ordered the trial to continue, the attorney general’s attempt to withdraw the indictment raises disturbing questions. His office is the topmost official legal body and represents the prosecutor’s role in Sri Lanka.
In dealing with criminal charges, can the country’s chief prosecutor take into account promises of good behavior from the accused, or letters from his supporters? Obviously this is not an acceptable standard in Sri Lanka or anywhere else where the rule of law prevails.
The attorney general has undermined the primary principles that everyone is equal before the law, and that no one is above the law. If Peiris applied the same standard in all cases, he would not be able to file any indictment, as every accused would be willing to promise good behavior in the future. Also, it would not be difficult for an accused to get letters in his support, even from the highest places. Perhaps only very innocent persons, who have failed to develop connections with the corrupt and the powerful, may fail to get such letters.
This new practice also raises questions as to whose letters the attorney general is willing to treat with favor. Is it those from powerful politicians or particular lobbies or persons who have some influence over him? Do all such people enjoy favor with him, which an ordinary citizen would not have?
The duty to prosecute citizens for criminal offenses involves the protection of life and liberty. It involves protecting citizens from crime, on the one hand, and protecting people from the arbitrary deprivation of life and liberty, on the other.
At the United Nations this week Peiris spoke about the lofty ideals of common law that are being pursued by his department. How does such talk compare with his intervention to withdraw an indictment?
The learned judge in this case upheld the law and refused the application of the attorney general. If he had accepted it, the attorney general could have argued that it was the court that made this decision and that Sri Lanka respects the separation of powers. Thus, responsibility for the decision would have fallen on the court.
This is the manner in which the lack of investigation and prosecution of extrajudicial killings at police stations is being justified, in many cases. It is argued that the magistrate at the inquest has ruled the case a justifiable homicide – therefore this is the decision of the judiciary. In fact the court has not been provided with all the circumstances relating to the death of a person in police custody.
With no impartial investigation, and with documents forged to give the police version of events, the courts have only the evidence that the police and prosecutors choose to place before them. If complaints are made later, excuses are made on the basis of the magistrate’s verdict.
In this same manner the attorney general justified the imprisonment last year of journalist J.S. Tissainayagam under the Prevention of Terrorism Law. He told the United Nations Human Rights Council that the 20-year sentence was a minimum under the law, that it was a court decision and that Sri Lanka respects the separation of powers.
What he did not tell the council is that the journalist was convicted under a draconian law that makes crimes out of acts that are not otherwise considered crimes, and under which confessions are admissible as evidence. As for sentences, under this law the court can prescribe any sentence it wishes without consideration of other factors.
The whole system of criminal justice in Sri Lanka is standing on its head. The law is manipulated and twisted to get whatever result the prosecutor wants. The prosecutors can also become defenders whenever they wish, particularly when they participate in preliminary enquiries and subvert the process by various means.
It is the Department of the Attorney General that needs to come under public scrutiny if the rule of law, which is lost in Sri Lanka, is to be recovered.
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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.)
