Untitled - International Commission of Jurists

Lengthy delays in filing indictments, delays in the non-summary inquiry and further
delays in the substantive trial proceedings are common factors in cases of human
rights violations. It is common, for example, for a lapse of several years before the
first step of filing an indictment is taken and for delays to persist thereafter in the trial
process. This pattern is also commonly seen in the cases of torture of ordinary persons
in the South filed under the Convention Against Torture and other Inhuman and
Degrading Punishment Act No 22 of 1994. Indictments have been pending for almost
two years in the relevant High Court without being served on the accused. The
defence advanced in this respect is that the delay is due to the backlog of cases in the
Court. The Attorney General’s Department is responsible for issuing indictments and
is also blamed for unjustifiable delays, which accusation is met by the invariable
counter that the Department lacks sufficient staff and resources. 468
On the other hand, lawyers appearing for the victims often complain of a lack of
interest on the part of the state in conducting prosecutions and point to nonappearances
in court on the days that the trial is due to be conducted and frequent
applications for postponements as manifesting this lack of interest. Lack of capacity
on the part of state lawyers is also evident. All of these factors cumulatively result in
‘unplanned’ prosecutions and eventual acquittals or withdrawals.
[T]here have been instances where State Counsel who have been prosecuting
for several years have had no experience in conducting a prosecution before
the High Court from beginning to end. Such officers who cannot perform
their official duties with confidence naturally tend to succumb to internal and
external pressures and interferences as regards their official functions. Their
mindset is to ‘somehow survive in their job’ with the least realization that their
functional involvements as State Counsel call for much higher standards of
honesty, integrity and commitment than for an ordinary ‘job’. 469
The filing of faulty indictments is another manifestation of this same problem as was
clearly seen in the acquittals of the accused in relation to prosecutions commenced
following the findings and recommendations of the 1994/1998 Disappearances
Commissions, examined previously.
The office of Sri Lanka’s Attorney General has been subjected to the tug and pull of
political pressure from many decades back. Examples noted above include the role of
the state law officers before the Sansoni Commission, as well as the actions of the
468 Committee Appointed to Recommend Amendments to the Practice and Procedure in Investigations
and Courts, “The Eradication of Laws Delays”, Final Report, 02.04.2004, at point 3.1, it is stated that
the failure to introduce an increase of cadre to correspond with the growing number of files received by
the Attorney General’s Department has seriously impeded its expeditious dispensation of legal advice.
It was observed that at present the Department comprises 123 officers out of which over 60 Officers are
assigned to the Criminal Division. The last cadre increase at the Attorney General’s Department was in
1996 during which year the number of files received by the Department stood at 1639. However, as at
2003, the number of advice files received by the Department, in addition to those involving Court
appearances amounted to over 6000 files (see above graph). Additional cadre was recommended to be
recruited with immediate effect, with particular reference to the Criminal Division.
469 De Silva, Samith, “A critique of the prosecutorial/judicial system and the role of the Attorney
General in respect of prosecutions for grave human rights violations” LST Review, Law & Society
Trust Volume 17, Issue 234 &235, April & May 2007, p. 30, at p. 37.
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