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