The diminished credibility of justice institutions

By Kishali Pinto-Jayawardena

(May 09, Colombo, Sri Lanka Guardian) Legitimate fears arise this week as to whether the post elections policies of this government will lead to the further undermining of Rule of Law institutions in the months ahead.

Overarching political control

The deliberately designed retention of powers in the hands of the Executive Presidency to an extent hitherto never seen, (even with the most manipulative of past Executive Presidents such as JR Jayawardene), accompanied by an equally deliberate redistribution of ministerial and political authority among the various members of the Presidential family is exceedingly worrisome in and by itself. Such an all powerful political constellation carries very obvious dangers, particularly against the backdrop of an opposition which remains pitifully inchoate, ineffective and disunited.

This overarching control of the country’s social, economic and development sectors by one political family is further aggravated by gravely insidious policy changes that threaten even the limited extent of democratic space that we possess in Sri Lanka today.

The Office of the Attorney General to come under the President

One such immediately troubling development concerns the bringing of the Department of the Attorney General under the direct control of the Executive Presidency. In the gazetted notification relating to the assignment of subjects and functions to the relevant ministries, (Gazette no 1651/20-April 30th 2010), the Department of the Attorney General is omitted from the list of departments under the Ministry of Justice. Instead, this Department has been brought under the purview of President Mahinda Rajapakse in terms of Article 44(2) of the Constitution which is, inter alia, to the effect that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister.

This is an extraordinary development indeed and goes to the very heart of Sri Lanka’s legitimacy as a democratic system. For years, the efforts of legal activists and commentators in this country had been directed towards drawing attention to freeing the Department of the Attorney General from indirect political control. There were good reasons as to why these calls were made.

Political control of prosecutions

Increased political control of prosecutions had led to the Department of the Attorney General loosing much of its lustre through the years. The extent to which state prosecutors had been politically driven in several cases to refrain from going ahead with the prosecutions or to embark on arbitrary prosecutions has been well documented and analysed. Instances in the first category for example, include, most famously, the Richard de Zoysa prosecution where the Liberal Party of Sri Lanka, (which is now most unremarkably silent on equally grave challenges as then to the Rule of Law), virtually accused the then Attorney General of acting according to the dictates of the United National Party government in power. Other cases of politically tainted prosecutions are well known in this regard, numbering among them failure to hold those accountable for the massacre of prisoners at the Welikada prisons.

However, despite the political pressures brought on the Attorney General in particularly controversial cases such as the above, there remained honourable state law officers who persevered to conform to time honoured traditions of serving as the State’s chief law officer rather than to act as a political lackey of any particular government in power.

This concept of an independent state law officer was not a magical creation. Instead, this rationale evolved through time, commencing from the moving out of the Attorney General from the inner cabinet as a result of recommendations made in 1928 by a special commission on the Constitution and then becoming firmly entrenched through the Soulbury Reforms. Though there were challenges posed to this concept, most notably in 1972, its vital importance was recognized in later constitutional changes in 1978. In more recent and further acknowledgement thereof, the 17th Amendment to the Constitution stipulated that the Attorney General must be appointed subject to approval by the Constitutional Council. Ancillary legislation laid down strict removal procedures in respect of the Attorney General equal to the removal of an appellate court judge.

Serious problems with legal accountability

Yet all these painfully evolved constitutional protections have been rendered nugatory at one stroke by this government in bringing the Department of the Attorney General under the direct control of the Executive President.

Given Sri Lanka’s serious crisis of credibility in regard to legal accountability for human rights abuses, the creation of the Office of an Independent Prosecutor with funds drawn from the Consolidated Fund and not coming under any ministry, was in fact suggested by the 1994 Commissions of Inquiry into Enforced Disappearances. Yet we have the exact opposite today. What does this signify for the public acceptance of the Department, even at the diminished level at which this acceptance exists today? Can we expect even the theoretical notion of the office of an independent Attorney General to survive? From indirect political control, do we now have to contend with direct political control, from the filing of indictments to the withdrawing of cases? These are relevant questions indeed for us to ponder over.

Insidious undermining of the Rule of Law

These policy changes are wrought quite insidiously. At one point, we are expected to be grateful for the relaxation of certain aspects of emergency laws and to be glad that journalist JS Tissainayagam has been pardoned. Yet questions remain as to why the military continues to be afforded police powers under remaining emergency law and why indeed a journalist had to be indicted in the first place, primarily for writings that surely come within the scope of freedom of expression however disagreeable they may have been to some? And while we hear of constitutional reforms on the one hand, even existing justice institutions are undermined on the other hand. Without securing the basic independence of justice and legal institutions, is there any point in establishing yet another Commission, this time (apparently) on Justice and Reconciliation? We have seen very well the farcical nature of such Commissions before, designed purely as a palliative to international pressure rather than to benefit the people.

These are fundamentally conflicting signals that (unfortunately) appear to speak to a most profound insincerity of this administration in terms of its commitment to the Rule of Law.