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officers who were prepared not only to do a ‘quick job’ but ‘any job’. Police were coaxed to swear diabolically false affidavits to court. The police officers did so to save their skins. 475 It must be acknowledged, however, that at times the holders of the office of Attorney General have attempted to perform their duties according to law and as justly as possible, but have been impeded by political constraints. A good example in this regard is detailed by the UTHR in its recent report 476 concerning a magisterial order delivered in Trincomalee ordering the removal of unauthorised religious structures, including a Buddha statute as well as four Kovils. The advice of the Attorney General K.C. Kamalasabayson was sought and action was filed on this basis. This move was opposed by a Buddhist priest who went before the Supreme Court alleging that the magisterial order was issued “on the advice of the Attorney General, Mr. Kamalasabayson, who is a Hindu and a Tamil, and who also was a former resident of Trincomalee.” The UTHR observes that this petition “amounted to a personal attack on the Attorney General citing his minority affiliation, when in fact he was carrying out a task assigned by the Government.” As such, the Supreme Court might simply have refused leave to proceed. Instead, former Chief Justice Sarath Silva advised the Attorney General to withdraw the case filed by him in the Trincomalee District Court in return for the Buddhist priest to withdraw his petition. The UTHR observes; The Attorney General, who struck observers as having been shaken, gave in. The exchange was done on 18 July 2005. Legal sources read this as the Attorney General being arm-twisted with the threat of giving the petitioner leave to proceed. Then the Attorney General is likely to have been left isolated with the hounds baying for his blood. 477 Recent amendments have constitutionally strengthened the office of the Attorney General with the appointments procedure subject to provisions of the 17 th Amendment to the Constitution. 478 The removals procedure has also been made subject to stringent safeguards similar to that of appellate court judges by subsidiary legislation passed consequent to the 17 th Amendment. 479 However, the 17 th Amendment has currently been rendered non-functional with the result that the independent functioning of any holder of the post of Attorney General has been left more vulnerable than before. 475 De Silva, Samith, ‘Some thoughts on the current crisis affecting Sri Lanka’s criminal justice process,’ LST Review, Law & Society Trust, Volume 18, Issue 246 &247, April & May 2008, p. 41, at p. 49. 476 University Teachers for Human Rights (Jaffna), ‘From Welikade to Mutur and Pottuvil: A Generation of Moral Denudation and the Rise of Heroes with Feet of Clay,’ Special Report, No. 25, 2007. 477 ibid. 478 The 17 th Amendment specifies that the nomination for the post should be approved by an apolitical body, namely the Constitutional Council (CC) with the appointment being made by the President. However, this important vetting task performed by the CC has now broken down due to the CC not being constituted in its second term owing to an unconscionable negating of the 17 th Amendment by the Presidency and Parliament. 479 See Removal of Officers (Procedure) Act, No 5 of 2002. 135
The separation of the public prosecution function from the Attorney General’s Department has long been advocated as a solution to the perceived lack of independence. Indeed, a Public Prosecutor’s Office had been recommended as far back as 1953 when the Criminal Courts Commission advised the creation of such an office. 480 As stated by this Commission, serious weaknesses in the process of investigation on the part of the police meant that the intervention of a legal authority in this regard was necessary. It was envisaged not only that such a legal authority would have the duty of giving counsel but that the police would be under a legal obligation to report cases to this new legal office that would then have conduct of the prosecution. 481 The guidance of trained lawyers with the ability to brush aside inessentials and drive to the heart of the case was considered desirable. 482 It was consequent to this recommendation of the Criminal Courts Commission that the office of a Director of Public Prosecutions (DPP) was created by the Administration of Justice Law No. 44 of 1973. This law was replaced in 1977 by the Code of Criminal Procedure Act, No. 15 (1979); however, the DPP was abolished. During its brief existence, the DPP had a wide variety of powers, including sanction over certain types of prosecutions, power to apply to the High Court for continued custody of suspects pending investigation and power to take over private prosecutions. The DPP also had to be informed of any prosecution being withdrawn or not proceeded with in the Magistrate’s Court. Regarding the police, the DPP was to advise them “in difficult cases”, including the provision of “directions regarding the carrying out of the investigations after studying the police reports.” 483 However estimable the intention was in the creation of the office of the DPP, there is no doubt that the office was directly subject to political pressure. It was due to such politicisation of the process that the office of DPP was abolished when the administration changed in 1977. One related recommendation in recent times is the ‘Office of Independent Prosecutor’. Put forward by both the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, 484 and by the 1998 All-Island Disappearances Commission, 485 their related observations illustrate the serious impact of the absence of prosecutorial independence. We feel the need to create the office of an independent prosecutor with security of tenure (with a supporting staff) to institute prosecutions once evidence has been collected by the proposed investigating unit. The existing framework of the Attorney General’s Office is not structured to fill this need. The Attorney General’s function is to mount prosecutions and represent generally state officers in complaints against them. This appears to place that office in a paradoxical position. The sole concern of the proposed independent 480 Sessional Paper XIII of 1953. 481 ibid, at p. 20, para. 50. 482 ibid. 483 Law Commission, Memorandum, 16.11.1970, at paras. 58-59. 484 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission, Sessional Paper No. V, 1997, at pp. 69, 83 and 175. 485 Report of the 1998 All-Island Disappearances Commission, at p. 16. This Commission recommended that the office of an Independent Human Rights Prosecutor be created under the ambit of the Human Rights Commission by amending the relevant law. 136
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In exploring what constitutes a ver
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ABBREVIATIONS AC AG AHRC AI A-L ALR
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TAB TELO TUF TULF TYL UN UNHRC UNP
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government agencies may be unable o
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appointed under the Commissions of
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communities. Krishanthi Kumaraswamy
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investigative function that could m
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measures recommended in regard to r
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and Bandaranaike became the prime m
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assembly and association of trade u
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majority pro-Sinhala political lead
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The violence reached a crescendo in
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enforced disappearances were report
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The Court of Appeal dismissed petit
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process and commissions of inquiry
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Declaration on Upholding Human Righ
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terms, 66 and clear guidelines laid
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Though the drafters of second Repub
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• Perera v. AG 89 and Wickremeban
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was also spared the distinction of
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The Court’s reasoning at times ap
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however, linked the habeas corpus a
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The ineffectiveness of the writ rem
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The Court of Appeal when sending th
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anything. We have received informat
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the findings of guilt against the a
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The Embilipitiya case is unique in
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police did not carry out the arrest
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sexual intercourse […].” 177 He
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accused even though the relevant do
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confession made to the military pol
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Chapter Three - Commissions of Inqu
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excesses that had preceded the acti
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property of Sinhalese persons domic
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appear before the Commission was al
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Notwithstanding these consideration
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The Commission’s recommendation t
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Date of Publication of Report: not
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(f) the measures necessary to preve
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were SLFPers. I was told, that area
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The 1994 Western, Southern and Saba
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Page 110 and 111: pattern of harms, to recommend meas
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Page 132 and 133: arrests. In consequence, most of th
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Page 144 and 145: 5.2. Language Issues at Trial Stage
Page 146 and 147: enforced disappearance; (ii) Exerci
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Page 150 and 151: 6.3. Absence of a Specific Crime of
Page 152 and 153: camp. Scrutiny of the evidence in t
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Page 156 and 157: have been adjourned by the relevant
Page 158 and 159: fact, acknowledged. 563 The accused
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Page 162 and 163: Thavaneethan v. Dissanayake [2003]
Page 164 and 165: Dias v. Abeywardene [1966] 68 NLR 4
Page 166 and 167: Vadivel Sathasivam and Parathesi Sa
Page 168 and 169: Criminal Courts Commission, Session
Page 170 and 171: Keenan, Alan, ‘Making Sense of Bi
Page 172 and 173: Principles on the Effective Prevent
Page 174 and 175: United Nations Human Rights Committ
Page 176: Pinto-Jayawardena, Kishali, ‘Furt
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