Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
Untitled - International Commission of Jurists
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
The separation <strong>of</strong> the public prosecution function from the Attorney General’s<br />
Department has long been advocated as a solution to the perceived lack <strong>of</strong><br />
independence. Indeed, a Public Prosecutor’s Office had been recommended as far<br />
back as 1953 when the Criminal Courts <strong>Commission</strong> advised the creation <strong>of</strong> such an<br />
<strong>of</strong>fice. 480 As stated by this <strong>Commission</strong>, serious weaknesses in the process <strong>of</strong><br />
investigation on the part <strong>of</strong> the police meant that the intervention <strong>of</strong> a legal authority<br />
in this regard was necessary. It was envisaged not only that such a legal authority<br />
would have the duty <strong>of</strong> giving counsel but that the police would be under a legal<br />
obligation to report cases to this new legal <strong>of</strong>fice that would then have conduct <strong>of</strong> the<br />
prosecution. 481 The guidance <strong>of</strong> trained lawyers with the ability to brush aside<br />
inessentials and drive to the heart <strong>of</strong> the case was considered desirable. 482<br />
It was consequent to this recommendation <strong>of</strong> the Criminal Courts <strong>Commission</strong> that<br />
the <strong>of</strong>fice <strong>of</strong> a Director <strong>of</strong> Public Prosecutions (DPP) was created by the<br />
Administration <strong>of</strong> Justice Law No. 44 <strong>of</strong> 1973. This law was replaced in 1977 by the<br />
Code <strong>of</strong> Criminal Procedure Act, No. 15 (1979); however, the DPP was abolished.<br />
During its brief existence, the DPP had a wide variety <strong>of</strong> powers, including sanction<br />
over certain types <strong>of</strong> prosecutions, power to apply to the High Court for continued<br />
custody <strong>of</strong> suspects pending investigation and power to take over private<br />
prosecutions. The DPP also had to be informed <strong>of</strong> any prosecution being withdrawn<br />
or not proceeded with in the Magistrate’s Court. Regarding the police, the DPP was to<br />
advise them “in difficult cases”, including the provision <strong>of</strong> “directions regarding the<br />
carrying out <strong>of</strong> the investigations after studying the police reports.” 483 However<br />
estimable the intention was in the creation <strong>of</strong> the <strong>of</strong>fice <strong>of</strong> the DPP, there is no doubt<br />
that the <strong>of</strong>fice was directly subject to political pressure. It was due to such<br />
politicisation <strong>of</strong> the process that the <strong>of</strong>fice <strong>of</strong> DPP was abolished when the<br />
administration changed in 1977.<br />
One related recommendation in recent times is the ‘Office <strong>of</strong> Independent<br />
Prosecutor’. Put forward by both the 1994 Western, Southern and Sabaragamuwa<br />
Disappearances <strong>Commission</strong>, 484 and by the 1998 All-Island Disappearances<br />
<strong>Commission</strong>, 485 their related observations illustrate the serious impact <strong>of</strong> the absence<br />
<strong>of</strong> prosecutorial independence.<br />
We feel the need to create the <strong>of</strong>fice <strong>of</strong> an independent prosecutor with<br />
security <strong>of</strong> tenure (with a supporting staff) to institute prosecutions once<br />
evidence has been collected by the proposed investigating unit. The existing<br />
framework <strong>of</strong> the Attorney General’s Office is not structured to fill this need.<br />
The Attorney General’s function is to mount prosecutions and represent<br />
generally state <strong>of</strong>ficers in complaints against them. This appears to place that<br />
<strong>of</strong>fice in a paradoxical position. The sole concern <strong>of</strong> the proposed independent<br />
480 Sessional Paper XIII <strong>of</strong> 1953.<br />
481 ibid, at p. 20, para. 50.<br />
482 ibid.<br />
483 Law <strong>Commission</strong>, Memorandum, 16.11.1970, at paras. 58-59.<br />
484 Final report <strong>of</strong> the 1994 Western, Southern and Sabaragamuwa Disappearances <strong>Commission</strong>,<br />
Sessional Paper No. V, 1997, at pp. 69, 83 and 175.<br />
485 Report <strong>of</strong> the 1998 All-Island Disappearances <strong>Commission</strong>, at p. 16. This <strong>Commission</strong><br />
recommended that the <strong>of</strong>fice <strong>of</strong> an Independent Human Rights Prosecutor be created under the ambit <strong>of</strong><br />
the Human Rights <strong>Commission</strong> by amending the relevant law.<br />
136