Response of the Attorney General
of Sri Lanka to the
3rd Public Statement of the IIGEP
21st September 2007
Justice P.N. Bhagwati,
Chairman,
International Independent Group of Eminent Persons,
IIGEP Secretariat,
Hilton Residences,
Colombo.
Response of the Attorney General of Sri Lanka to the
3rd Public Statement of the IIGEP
As stipulated in the Terms of Reference pertaining to the functioning
of the International Independent Group of Eminent Persons (IIGEP), I
in my capacity as the Attorney General of Sri Lanka is empowered to
provide my observations and comments in the form of a response, regarding
Public Statements issued by the IIGEP. Stated below are my observations
pertaining to the 3rd Public Statement of the IIGEP, which on the face
of it appears evidently to have been issued by the IIGEP to coincide
with the ongoing 6th Session of the United Nations Human Rights Council,
in Geneva, Switzerland, and therefore to possibly have a bearing on
deliberations at the Council. You would recall that the IIGEP chose
to release the 1st and 2nd Public Statements to coincide with the 5th
Session of the UN Human Rights Council.
As the 3rd Public Statement issued by the IIGEP has received publicity,
acting in national interest, I wish to respond to you through this public
communication.
I am compelled to urge the IIGEP to respond objectively to the contents
of my public communication to you (issued in June 2007) in response
to your public statements (including interviews given to the media),
rather than complaining of the words and terminology used by me. Without
restricting your response to the words used by me, I would have thought
that it would have been more productive, had you responded objectively
to the contents of my communication.
I wish to now deal with the several issues raised by you in the 3rd
Public Statement.
1. Participation of Counsel from the Attorney General's Department in
the Panel of Counsel from the Official Bar of the Commission of Inquiry
The appointment of the Attorney General of Sri Lanka is not based on
political considerations. He holds an independent office. It was the
Commission of Inquiry that invited the Attorney General to nominate
a few counsel from the Attorney General's Department to assist the Commission.
The wishes of the independent Commission should be adhered to. The practice
in Sri Lanka has been for counsel from the Attorney General's Department
to assist Commissions of Inquiry when a request is made by such a Commission.
In the normal criminal justice system, the Attorney General does not
direct the conduct of investigations. He merely advices investigators,
when such advice is sought and generally when investigational endeavours
by investigators have been concluded. Therefore, counsel from the Attorney
General's Department who assist the Commission do not face a conflict
of interest. Nor is there any competing interests faced by such counsel.
In any event, after the present Commission concludes its investigations
and inquiries, it would become the responsibility of the Attorney General
and his officers to launch criminal proceedings in the High Court and
conduct such prosecutions. Therefore, there is valid justification in
officers of the Attorney General's Department continuing to function
in the Commission. The Commission is an independent body, and therefore
a final decision on whether or not such officers should continue to
assist the Commission should be taken by the Commission and not by His
Excellency the President (as urged by Justice Bhagwati, when he met
with the President on the 20th of August 2007) or by me in my capacity
as the Attorney General. The Commission has already appointed two senior
private practitioners [namely Mr. R.K.W. Goonasekera (who is an eminent
and senior human rights lawyer and a one time member of the United National
Sub Commission on Human Rights) and Mr. Ranjit Abeysuriya (President's
Counsel, one time Director of Public Prosecutions and one time President
of the Bar Association of Sri Lanka)] and two other private Counsel
to function as Members of the Panel of Counsel from the Unofficial Bar.
This Panel is presently assisting the Commission and examining witnesses
during Clause 8 investigations. In fact, in the investigation into the
killing of 5 youths in Trincomalee, it is members of the Panel of Counsel
form the Unofficial Bar, who are examining witnesses on behalf of the
Commission. Furthermore, this scheme is much better than the scheme
that you have previously advocated, where as you have suggested counsel
from the AG's Department 'instruct' members of the Panel of Counsel
from the Unofficial Bar. Under the scheme developed by the Commission,
the two panel of counsel are totally independent of each other. Therefore,
even at this late stage, I hope you appreciate that the Commission's
independence has not been affected by its' decision to retain counsel
of the Attorney General's Department to assist the Commission at investigations
and inquiries.
2. Providing financial autonomy to the Commission of Inquiry
As the Commission is not a permanent body and has temporary existence,
the prevailing laws and financial regulations and associated practices
would not permit the Commission to be empowered to maintain its own
bank account or to obtain funds from sources outside the government.
All necessary funds have been and would in the future too, provided
by the Presidential Secretariat. Already a sum of Rs. 24 Mn has been
spent by the Presidential Secretariat on behalf of the Commission. A
further sum of Rs. 24 Mn has been allocated for this year out of a total
allocation of Rs. 90 Mn. A further sum of money will be obtained from
next year's budget. Steps will be taken to ensure that, all requests
for funds would be expeditiously processed and necessary funds provided
to the Commission without any delay.
3. Expeditiously establishing an efficacious witness protection programme
based on new national legislation.
New draft legislation on providing assistance and protection to victims
of crime and witnesses has been finalized by relevant officials of the
government. Relevant policy guidelines have been formulated by the Law
Commission and by the Attorney General's Department. The policy is now
before the Presidential Secretariat for final clearance by the President.
The Ministries of Justice and Disaster Management & Human Rights
will jointly sponsor the Bill and present it to the Cabinet. It is envisaged
that the draft will be presented to the Cabinet of Ministers within
the next two to three weeks. Thereafter, steps will be taken to present
the Bill in Parliament under the 'urgent bills' procedure. It is likely
that the new legislation would be in place within the next two months.
However, without waiting till the new legislation is passed, the Commission
of Inquiry can proceed to implement its own scheme of assistance and
protection to victims of crime and witnesses. Necessary financial resources
in that regard will be made available to the Commission by the Presidential
Secretariat based on an approved budget. The Commission has taken meaningful
steps to provide foreign training to officers of the Victim and Witness
Protection Unit of the Commission. The Unit is already functioning,
and its efficacy would increase after the training of its officers is
concluded. It is the duty of the Commission, the IIGEP and others interested
in the success of the Commission, to ensure that the public has confidence
in the victim and witness protection programme of the Commission.
In view of the foregoing, I urge the IIGEP not to make public statements
that directly and unnecessarily affect public confidence in the Commission
of Inquiry and on other public institutions of Sri Lanka such as the
Attorney General's Department, and to alternatively engage with the
Commission and with such other institutions in a constructive manner,
so as to ensure that the objectives of efficacious law enforcement and
dispensation of justice pertaining to alleged serious human rights violations
could be jointly and harmoniously met.
Sgt.
………………….
C.R. De Silva, PC
Attorney General
CC
1. Hon. Nissanka Udalagama, Chairman of the Commission of Inquiry
2. Hon. Commissioners of the Commission of Inquiry
3. Members of the IIGEP
4. Hon. Mahinda Samarasinghe, Minister of Disaster Management and Human
Rights
5. Mr. Lalith Weeratunge, Secretary to the President
6. Dr. Palitha Kohona, Secretary to the Ministry of Foreign Affairs
7. Prof. Rajiva Wijesingha, Secretary General, SCOPP
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