By Harim Peiris

(Published in the Island of 20^th September 2018)

President Sirisena several days ago disclosed to the media that he had strongly chided the Attorney General’s Department and the Police Department, specifically the CID, with regard to investigations relating to serving military officials. This was preceded by a special cabinet meeting in which he reportedly had also expressed the same sentiments. To the extent that the President of the Republic strongly criticizes the law enforcement, prosecutorial and justice departments of the Government, the obvious parallel would be with US President Donald Trump who also uses his now famous Twitter account, to both chide his own Attorney General, former Senator Jeff Sessions, Robert Muller, the Independent Counsel investigating possible Russian interference in the US election process and at various times both the FBI and the CIA.

The reason for the US President to take to social media, especially Twitter, to express his ire at the justice system, is that in the United States, the criminal investigative and prosecutorial processes are strongly independent of the executive branch of the government. They are overseen by the legislature, the US Congress. The system of government in the United States strongly separates the three functions of state governance, the executive, legislative and judicial branches.

This is not the case in Sri Lanka. The Attorney General’s Department in particular, is the chief legal advisor to the state and in practice this has meant to the government of the day.  However, it is also meant to be an independent prosecutorial office, but the ability of the AG’s Department to be both government legal advisor and a regulator or enforcer of adherence to the law by government, has in the past always been suspect. Now clearly, they are more independent of the executive, which is why the Presidential recourse to non-performance, is political pressure through a public chiding.

The 19^th Amendment at work

The 19^th Amendment to the Constitution of Sri Lanka is the signature achievement of the Sirisena / Wickramasinghe Administration elected in 2015. It was seen as a stepping stone to abolishing the executive presidency, a reversal of the previous Administration’s 18^th Amendment and an attempt to strengthen democracy in Sri Lanka through ensuring that we as a nation are governed by laws and institutions and not by populist strongmen occupying the office of executive president.

Accordingly, key appointments are made by the Constitutional Council to a range of Independent Commissions, which administer critical State functions, such as elections and the police, all of which should be independent of the executive. Handing over the management of the careers of police officers, including appointments and promotions from a politicized process to a truly independent Police Commission has eliminated the need for police officers to take orders from politicians to further their own career prospects.  To that extent, the police are free to operate more independently.

Investigating military officers eliminates appearances of impunity

A key allegation against the Sri Lankan State and especially its justice system is that human rights violations and state agent violators do so with impunity. Buttressing this argument is that we have a paucity of cases in which Sri Lanka has prosecuted rights offenders and an even lesser number of convictions in that regard. It is therefore a salutary aspect of Sri Lanka’s democracy and a credit to the robustness of our institutions, if no one is deemed above the law, whether from the political, military, or civil service establishments. Also, due process and protection of the rights of suspects should not be a special privilege conferred on suspect military officers alone. It should be extended to all citizens. It is a cardinal principle of natural justice that everyone is treated equally before the law. Due consideration can and should be given to the rights of suspects including their presumption of innocence. Kishali Pinto Jayawardena in her popular most recent legal column states “In sum ensuring that fairness ensures to all citizens in equal measure in criminal investigation and detention procedures is the basic duty of the state”.

The laws delay

The substantive issue that drew presidential ire, was not per se that military officers are being investigated but that such investigations have not resulted in charges being laid, thereby leaving room for the allegation that the arrests and detentions are a witch hunt with extraneous reasons or mala fide. The frustrations expressed by President Sirisena at the lack of prosecutions or the filing of indictments (criminal charges) against corruption and human rights violation suspects is a frustration felt by a large segment of those who voted and supported the “Yahapalana” mandate for change of 2015. So even at this late stage, some progress on prosecutions would serve the cause of justice in Sri Lanka.

The long periods taken to investigate cases, must be viewed in the context of the protracted legal process in Sri Lanka, where the average case takes ten to fifteen years to conclude. The Bar Association which is busy opposing free trade agreements, may be better advised to focus on some legal reforms which can ensure a speedier delivery of justice. As the old popular adage goes, justice delayed is justice denied.

The extended period of holding suspects in remand custody should also be considered in the context of the Prevention of Terrorism Act (PTA), due to be repealed and replaced by the new Counter Terrorism Act (CTA). As Attorney at Law Senaka Perera, President of the Committee for Protecting Rights of Prisoners (CPRP) has claimed that there are one hundred and seven detainees under the PTA against whom charges have not been filed and many have been in remand for over nine or ten years. Hence the severe limitation on the period of detention orders in the new CTA. In summation, it may be fair to state, that Sri Lanka requires many reforms to ensure that society receives more effective judicial remedies.