AG accuses IIGEP of plot to bring in international HR observers

In the wake of charges made by the IIGEP for terminating its mission before the conclusion of the proceedings of the Commission of Inquiry, Mr. C.R. de Silva Attorney General (AG) made a detailed defense of his officers who assisted the CoI. We tabulate a summerised version of the AG’s reply.

…following the establishment of the Secretariat of the Commission of Inquiry (CoI), one of the first functions of the Col was to present a request to the Attorney General to nominate officers of the AG's department, to assist the Commission in its activities.

In view of this request made by the Commission and the provision of the Warrant of the Commission requiring all public servants to assist the Commission when their services are solicited, the then Attorney General the late Hon. K.C. Kamalasabayson, PC nominated a team of five officers of the AG's department headed by the then Solicitor General to assist the Commission.

In making these nominations, the then Attorney General identified the need to nominate senior officers who had assisted in the establishment of the Commission and the IIGEP, officers who possessed experience in assisting Commissions of Inquiry and Officers who possessed experience in the conduct of criminal prosecutions.

They were also persons who possessed necessary experience and an unblemished professional integrity. Upon receiving the nominations, being satisfied with the nominations received, the CoI appointed the nominated officers as members of the 'Panel of Counsel' of the Commission of Inquiry, and were required to report on the affairs of the Commission directly to the Commission itself.

Following their appointment to the Commission, the officers of the AG's department assisting the Commission have been performing the following functions:

(a) Drafting the internal rules of procedure of the Commission.
(b) Recommending action to be taken with regard to public petitions received by the Commission.
(c) Participating in certain internal meetings of the Commission and expressing opinion.
(d) Suggesting avenues of further investigation.
(e) Participating at visits to scenes of crime.
(f) Examining witnesses who appear before the Commission at investigations and inquiries.

It is of paramount importance to note that, officers of the AG's department have not exercised discretionary authority. They have merely 'assisted' the Commission on the direction of the Commissioners. It is of importance to note that, up to this moment, at all instances, the relevant officers have functioned on directives given by the Commission and on instructions of the Commission.

At no instance have these officers acted on their own volition or exercised any statutory function vested in them by virtue of being representatives of the AG. The primary function entrusted to these officers by the Commission in certain cases being investigated and inquired into by the Commission, is to assist the Commission in the examination of witnesses by putting questions to them.

In such instances, the scope and the nature of examination of witnesses are determined by the Commission, the Commissioners have openly indicated to counsel the areas to be covered during such examination. At no instance have counsel violated such directives and have at all times acted in the best interests of the Commission.

The Commissioners never complained of the conduct of the counsel assisting the Commission and in fact have been complementary of their role and commented that their assistance was indispensable to the functioning of the CoI and withstood pressures by the IIGEP to terminate their services.

Whether or not officers of the AG's department could come under enquiry by the Col, has to be determined by an examination of the Warrant establishing the Commission.

The Warrant makes no reference to such effect. In addition to inquiring into the incidents proper, the Col has been mandated to inquire into the sufficiency and propriety of investigations conducted by the routine competent authorities. Therefore, under this second limb of the terms of reference, only those who took part in the original investigations would come under inquiry. That it was never intended by the President to subject the Attorney General or his officers to enquiry by the Commission is evident by the contents of a letter of clarification adopted on 5th November 2007, sent to the Commission by the Secretary to the President on the occasion of the extension of the term of office of the Commission by another year. Issuing this letter became necessary in view of certain views expressed by members of the IIGEP to the President. In the said letter, the intention of the President has been made manifestly clear.

The Sri Lankan criminal justice system, has no 'Special Prosecutor' for criminal cases amounting to Human Rights violations. All prosecutions other than prosecutions for bribery and corruption are at the instance of the Attorney General.

Therefore, consequent to the identification of perpetrators of serious violations of human rights and the collection of evidence against them, it would necessarily be the function of the Attorney General and his officers to consider the institution of criminal proceedings against such perpetrators, forward indictments and prosecute them in Courts of law.

In the circumstances, it becomes evident that, the letter dated 5th November 2007, only provided a clarification regarding the mandate of the Col, and was not intended to narrow down or restrict the scope of its mandate.

If under the existing criminal justice system, the duty of launching prosecutions and conducting prosecutions against those responsible for having committed serious human rights violations is vested with the AG, how could it be contrary to the interests of justice for the Attorney General's officers to assist the Col which has been mandated with the task of identifying the perpetrators who should be prosecuted and collecting evidence against them?

It would thus be seen that, there is no incompatibility, inappropriateness or conflict of interest between the role of the Attorney General (a) in the criminal justice system of Sri Lanka, and (b) as the principle legal advisor to the State and its agents on the one hand, and the role being performed by his officers assisting the Col on the other hand. In view of the foregoing, the Attorney General is of the view that officers of the AG's department, who assist the Commission of Inquiry, do not face either a 'conflict of interest' or 'competing interest' when assisting the Commission of Inquiry.

In recognition of the overall functions of the AG in the administration of justice, the protection of the interests of the State (as opposed to the interests of politicians holding political power or the interests of the particular government) and the need to ensure that the AG plays an integral role in Commissions of Inquiry appointed by the President, on a proposal by the government and after consideration by the Parliamentary (multi-party) Consultative Committee on Justice and Law Reform, Parliament unanimously amended the Commissions of Inquiry Act, enabling the AG the right to appear before any Commission of Inquiry, examine any witness who appears before such Commission and to present any relevant evidence before such Commissions.

In any event, for the last six months, officers of the AG's department have not been alone in assisting the Commission. Under the current (amended) organisational structure, whilst officers of the AG's department comprises the panel of counsel from the official bar, several members of the unofficial bar including the senior most human rights lawyer of Sri Lanka Mr. R.K.W. Goonasekera and one time President of the Bar Association of Sri Lanka and Director of Public Prosecutions Mr. Ranjit Abeysuriya President's Counsel in addition to comprising a panel of counsel from the unofficial bar.

Members of these panels jointly and in harmony assist the Commission in examining witnesses, and take lead roles as indicated to them by the Commission. Such a hybrid system was created by the Col due to certain concerns expressed by the IIGEP.

The IIGEP complains that a senior officer of the Attorney General's Department who is also assisting the Commission had 'given advice, directions to investigating officials during original police investigations'. The material based upon which such an allegation is being made has not yet been tendered to the Attorney General by the IIGEP.

It is surprising that IIGEP members who claim to be concerned about international norms and standards, did not pay due regard to the fundamental international norm, of presenting to the person against whom the allegation is made the material against him and obtaining his observations.

In the absence of such presentation of allegedly incriminating material, what ethical or moral right does the IIGEP have to make an accusation of that nature against a senior officer of the Attorney Generals Department? Isn't such conduct on the part of the IIGEP consistent with the existence of a sinister plot by the current membership of the IIGEP to make unfounded allegations in order to tarnish the good image of state institutions, so as to justify the arrival of alien (international) observers to monitor the Human Rights related situation in Sri Lanka?

The Attorney General vehemently denies that any of his officers assisting the Commission have issued 'directives' to police investigators regarding the conduct of investigations into cases being inquired into by the Col.

Officers of the AG's department have treated all cases before the Col in the manner in which all such cases ought to be handled and have only exercised their legitimate statutory function with regards to such cases.

Due to reasons not within the control of the Government of Sri Lanka, IIGEP members have hitherto observed on an average merely ten sessions out of nearly one hundred sessions of the Commission of Inquiry. Nor have their respective assistants continuously observed the sessions. Certain assistants have not been present at the Commission on more than three sessions. This state of poor attendance reflects the true nature of the interest shown in the affairs of the Col by the IIGEP. However, admittedly they have the benefit of verbatim transcripts of proceedings held so far.

Under these circumstances, it is astonishing that Members of the IIGEP who are critical of the functioning of Counsel from the AG’s department, could not with the aid of such transcripts, point out to a single line of questioning of witnesses by such Counsel, and indicate as to how such examination was in fact flawed or contrary to the interests of justice or inappropriate. This shows that in actual fact, the IIGEP is unable to point out to any tangible professional impropriety on the part of the Panel of Counsel from the Official Bar.

It is also pertinent to note that, purely due to the need to prevent unnecessary controversy, the Attorney General offered to withdraw his officers from the Commission if even one Commissioner of the eight-member Commission felt that it was not necessary or inappropriate to retain services of such counsel. Neither the Commission nor any particular Commissioner made such indication. Under such circumstances, it was not possible for the Attorney General to withdraw the services of officers of the AG's Department from the Commission of Inquiry.

The International Independent Group of Eminent Persons (“the IIGEP”) (consisting of 11 internationally eminent persons) was formed in February 2007 on the invitation of the President of Sri Lanka and established in November 2006. The violations referred to in the Warrant establishing the Commission were 15 cases dating from 1 August 2005 until 16 October 2006. A 16th case was later added.

The principal directive of the mandate given to members of the IIGEP was to observe the work of the Commission “with a view to satisfying that such inquiries were conducted in a transparent manner and in accordance with basic international norms and standards pertaining to investigations and inquiries.”

The IIGEP has not been able to conclude, as required by the terms of the Presidential invitation, that the proceedings of the Commission have been transparent or have satisfied basic international norms and standards. A summary of the reasons for forming that opinion and motivating the IIGEP to terminate its mission before the conclusion of the proceedings of the Commission of Inquiry, are the following:

(a) A conflict of interest in the proceedings before the Commission: In the opinion of the IIGEP the Attorney General’s Department of Sri Lanka has played an inappropriate and impermissible role in the proceedings of the Commission in advising the Commission on the conduct of its proceedings.An officer (Deputy Solicitor-General) of the Attorney General’s Department has taken a leading role in two of the four cases before the Commission so far, by way of acting as lead counsel in the questioning of the witnesses. At the same time, the Attorney General is the legal adviser to the Government and must protect the interests of the Government when actions by its organs, including the police and the armed forces, are called into question.

The presence of the Attorney General, through his officers acting as counsel assisting the Commission, raises a serious issue of conflict of interest. Many of the cases under review by the Commission involve questions of the adequacy of the original police investigations, or allegations against government forces, including the security forces.

The Attorney General has powers and exercised them in some of these cases, to give advice or directions to investigating officials during the original police investigations.

The Deputy Solicitor-General in question has been so involved in the opinion of the IIGEP, these considerations present an unacceptable conflict of interest which does not accord with international norms and standards, and to which attention has been drawn by IIGEP from commencement without success.

(b) Lack of effective victim and witness protection: There is an absence of a functioning and effective victim and witness protection programme under the laws of Sri Lanka. Although such a programme exists in name within the Commission, it enjoys no statutory basis, it lacks fully trained staff, and it does not have sufficient funds to offer adequate assistance to those in need of protection from possible retaliation for appearing before the Commission.

The Commission has not ensured the protection of victims and their families from intimidation and their representation by legal counsel. Moreover, there is no provision to extend the protection arrangements, such as they are, beyond the life of the Commission.

It is hardly surprising that, under these conditions, victims and witnesses have not come forward to give evidence. Many vital witnesses have fled abroad, in fear of their lives. Similarly, there is no protection for government officers who are willing to become “whistle blowers” and to give evidence of official misconduct.

(c) Lack of transparency and timeliness in the proceedings The IIGEP welcomes the Commission’s move to the public inquiry phase. Despite this move, the overwhelming majority of the Commission’s hearings have thus far been held behind closed doors. The proceedings of the Commission have lacked transparency. They have also been unduly slow and protracted.

The hearings have been divided, as a result of amendments to the Commission’s rules of procedure, between “investigations” and “inquiries”. The investigation hearings have been held in camera, that is, in the absence of any public observers (except the IIGEP) or representatives of the victims.

They have been slow and tedious, with much repetitive or irrelevant questioning of witnesses with little evident result so far as obtaining of new information of significance to the cases under review is concerned. It is difficult to understand the reasons for such closed “investigation” sessions. As a result of its slow progress, the Commission’s appointment, which expired in November 2007, was extended for a further year.

As of March 2008 only two of the total number of 16 cases listed in the Presidential Warrant have moved to the public inquiry stage: the case of the killing of five youths on the beachfront at Trincomalee (“the Trinco 5 case”), and the case of the massacre of the aid workers belonging to the French NGO Action Contre la Faim in Muttur (“the ACF case”).

The Commission is, in addition, investigating two other cases: the case of the killing of ten Muslim villagers at Radella in the Pottuvil police area on 17th September 2006 (“the Pottuvil case”) and the case of the death of fifty-one persons in Naddalamottankulam (Sencholai) in August 2006 (“the Sencholai case”). Because of the absence of an effective witness protection programme, there seems little likelihood that these public hearings will be any more likely than the closed investigations to discover the facts of the cases.

(d) Lack of full co-operation by State bodies: There has been a refusal by State bodies to comply with the Commission’s requests for information and documentation. Additionally, certain officers of the armed forces have refused to give information regarding the presence or absence of certain units at a particular time or in a particular place relevant to the cases so far examined by the Commission.

National security has been cited as the basis for such refusal. The legal basis for claiming privilege with regard to information of this nature is not clear. No certificate to this effect has been tendered to the Commission, nor were reasons given how national security might be compromised. The Commission itself has not pursued the witnesses in this regard.

(e) Lack of financial independence of the Commission: The Commission lacks financial autonomy. It does not have an independent budget and depends on the Presidential Secretariat for control of its finances.

The IIGEP has expressed its concern about the Commission’s lack of financial independence, and has supported the Commission’s requests for such independence. The Commission has also complained about the insufficiency of its funding as a constraint to several activities.