Columns

‘Disappearing’ notebooks, an assassinated editor, a lowly police officer who protested against the destroying of evidence and was threatened by his superiors to conform ‘to orders’ and such like, belong more inside the pages of a high octane spy thriller than in real life.

 A blueprint on how to violate the law

But these surreal aspects of the 2009 assassination of Sri Lankan editor Lasantha Wickrematunga exemplifies the kind of case that has typically formed the nucleus of Sri Lanka’s impunity ‘problem’ as is sometimes quaintly put. In each case, dramatic features, not only of the crime itself, but also the necessary cover-up, are uncannily similar.

The perpetrators performed faithfully in line with the blueprint furnished to them on ‘how to kill and how to escape’ which was, it must be said, crude in the extreme. And lest we forget, behind each of these crimes were ordinary human lives destroyed and families torn apart. And to pre-empt inevitably cynical scoffing, these were not ‘collateral damage’ of war, (there are no ‘perfect’ wars as we are told), but deliberate barbarities meant to enforce chilling ‘total political control’ in relation to gross corruption or the subjugation of minorities alike.

In one particular year alone, (ie 2006) taking as an example, three ‘emblematic cases’ featured all these ominous signs, apart from the killings of lesser known unfortunates. These three cases are the assassination of minority ethnicity students who were about to enter university (the ‘Trinco 5 case’), the brutal extra-judicial killings of aid workers in Mutur and the ‘disappearance’ of a Vice Chancellor in the heart of Colombo’s high security zone complex (Professor S Raveendranath of the Eastern University).

 Accountability of the State

At the time, when Professor Raveendranath’s son-in-law came to ask me as to what legal avenues for justice may be available, he remarked matter-of-factly that he had been performing surgery on injured soldiers at the National Hospital when informed of this disappearance. This casual aside has remained in my memory. Probably he himself was not conscious of the deep irony implicit thereto as he asked for justice for his (Tamil) father-in-law while saving the vision of (Sinhalese) soldiers.

This ‘emblematic’ disappearance (allegedly as we must say) at the hands of the para-military operating with state sanction while the Criminal Investigation Department (CID) ‘remained in the dark’ has now been listed among the ‘priority cases’ to be brought to a close by the National People’s Power (NPP) Government. For the point is that, in all these instances of the blood of innocents being spilt on the country’s soil, there has been little investigation and even lesser successful prosecutions.

At its core has been the accountability of the state prosecutorial office, including the grievous problem of ‘politicised prosecutors’ with unnerving allegations of complicity in the ‘cover-up’ of crimes that has put the Constitution and the Bill of Rights to shame. And in that convoluted process of ‘ensuring justice’, the continuing uproar over the ‘Lasantha Case’ flags an early red light to both the Government and the Department of the Attorney General.

 Unfortunate tit-for-tat of words

In fact, the ‘heat’ over the Attorney General’s order to discharge three suspects in the magistrate’s court case relating to this assassination, more specifically in connection with allegations of abducting Mr Wickrematunga’s driver who had accused military intelligence of orchestrating the murder, has only intensified during the past week. This has been further convoluted by the Attorney General ‘withdrawing’ the discharge order this week as his critics cheered and his defenders retreated in disarray.

But this tit-for-tat war of words raging between those upholding the ‘status quo‘ (ie; in this context, Sri Lanka’s besieged state prosecutor) and the Department’s vociferous adversaries on public platforms is hardly conducive to sober consideration of imperative reforms of the country’s prosecutorial office. As emphasised in these column spaces last week, framing these reforms as an ‘independent’ Director of Public Prosecutions (DPP) versus a ‘dependent’ Attorney General is largely unhelpful.

That simplistic treatment does not address core issues as to how and in what way the ‘independence’ of this Office may be secured. Sri Lanka experimented with such an Office in the seventies which was discarded due to the political manner of its functioning. Then as now, the courts declined to examine acts of the DPP or to exercise the power of review in setting aside decisions of the DPP.

 How does one ‘guarantee independence’?

More specifically, the exercise of his power to discharge suspects under Section 77 (3) of the old Administration of Justice Law was declined to be interfered with (Gunasena v the Attorney General, 1975) on the basis that     it was not a final order and may be reviewed by the Attorney General based on new evidence if so available. The NPP Government has hinted that it contemplates setting up the DPP as a separate Office to the Office of the Attorney General.

Even so, that by itself does not necessarily guarantee ‘independence.’ Ensuring that result must be cushioned by much more protections lest the office that is established is no better and perhaps a lot worse than what is sought to be remedied. In so doing, there are two interests to be balanced. On the one hand, the ‘independence’ of the prosecutorial function must be safeguarded.

On the other hand, that safeguard is not an ‘open sesame’ to engage in indefensible prosecutorial decisions which are moreover defended as being immune from public scrutiny, to add insult to injury. Let us look at what the International Monetary Fund (IMF), hardly a bastion of radicalism, says in its Governance Diagnostic Report on Sri Lanka (September 2023) as to why such an independent prosecution service may be needed (vide annexure 2 to the Report).

Separating the advisory role and the prosecutorial function

It is pointed out that this is paramount due to the Attorney General being too closely linked to the executive. This in a context where the state prosecutor is forced to be in close contact with political actors, ‘the functioning of his Department will always be open to charges of political bias, no matter the character or integrity of individual officers’ the Report states with evident force. It recognises the conflict between the roles of political advisor and criminal prosecutor.

The Report goes on to suggest the device of the DPP as a way of insulating the prosecutorial function from the political advisory role. Indeed, Sri Lankan prosecutors may take a leaf out of the book of the United Kingdom’s Crown Prosecutorial Service (CPS) which, even though underfunded and under-resourced as it is, has more than an 80% prosecutorial success rate.

The CPS is headed by a Director of Public Prosecutions (DPP) which acts independently from the Attorney General, even though there is inter-relation between the two Offices. More importantly, the Office is governed by a Code for Crown Prosecutors and is publicly accountable for the decisions that it takes, whether in regard to issuing indictments or discharge orders.

Looking at the public interest

This is good comparative thinking that may be taken into account in the Sri Lankan context. We are told that a committee of representatives of the Attorney General, the Bar Association of Sri Lanka, including also a judicial officer will be appointed by the NPP Government to examine as to how the DPP may be established.

It is hoped that the members of this committee will engage in rational examination of the relevant interests, including the public interest thereto. In the final reckoning, it is profoundly paradoxical that Wickrematunge’s killers are probably laughing up their sleeves as public attention remains focused on the ancillary abduction case. This may perchance be exactly what ‘Deep State’ forces wanted all along.

That will be the final insult to countless victims ‘still waiting for justice’ in Sri Lanka.