AG compromises authority of High Courts

"The Executive President in charge of all executive functions in Sri Lanka should understand the gravity of this situation on society as a whole. If the belief that political patronage will allow criminals to sidestep their sanctions deepens, then criminals will find a way to achieve such patronage. As a result, the people would have no protection of any sort from criminals who enjoy political patronage."

(February 08, Hong Kong, Sri Lanka Guardian) Last week, the Attorney General (AG) agreed to withdraw charges of murder and the causing of grievous hurt against four people who had been accused and charged before the Colombo High Court. The accused agreed to plead guilty for the charge of unlawful assembly, their third and final charge. The accused allegedly caused the murder of a candidate and injured his brother in a shooting incident relating to the election of a cooperative at Nampamunuwa in 1996. The trial began at Panadura High Court and at a crucial stage the trial was withdrawn and taken up again at the Colombo High Court. At the Colombo High Court, before the case reached its final stages, the jury complained of receiving death threats and was allowed to retire. The case was then taken up before the High Court judge. After 15 years, the Attorney General has agreed to withdraw the more serious charges on the basis that the accused were willing to plead guilty to the charge of unlawful assembly. This charge carries a much lesser sentence.

Many questions arise as to the propriety of the withdrawal of the charges of the accused.

The Attorney General has not explained the basis on which he has agreed to withdraw the charges of murder and causing of grievous hurt. If we are to assume by the previous trials the reason cannot be an absence of evidence. Lengthy evidence was led about the incident, and the relevant details were reported in local newspapers. The public who are aware of the details of the incidents are likely to want to know the grounds on which the Attorney General has agreed to withdraw the charges. The first accused is a well-known politician supporting the present government in power; this will raise doubts as to whether the agreement was reached on purely political grounds instead of valid legal reasons.

What is more important is the impact of this case on future criminal trials in Sri Lanka. On two occasions the trial had to be abandoned because the jurors had received death threats. If in all cases of murder, the accused demand jury trials, as they are entitled to demand, and the jurors are threatened with death, will this not lead to an easy method of having charges dropped to lesser ones? In the past, criminals have learnt of ways in which they can avoid punishment that are the consequences of serious charges they are faced with. We are aware that on one occasion, an accused person went to the extent of killing a High Court judge himself, because the judge was known to be strictly impartial and would have made a ruling as required by law.

When jurors were threatened, as in earlier cases, it was clearly the duty of the Attorney General and the Sri Lankan state to provide assurances of protection to these jurors, and ensure that the trial was carried out in a just and fair manner, unadulterated by the intimidation of criminals. The failure of the Sri Lankan state to assure the security of the jurors and bring the trial to completion shows the enormous weakness of the state that criminals are likely exploit in the future.

If such behavior continues, the only criminal trials that the Sri Lankan state will be capable of carrying out to completion will be those of individuals who do not have the capacity to make such threats -- in other words, the weaker sections of society. Those who are capable of instilling sufficient fear in the jurors or witnesses would avoid the sanctions they deserve to face, and thereby the criminal elements of society will show themselves to be stronger than the state.

The government boasts of defeating terrorists and claims that it has the capacity to deal with any threat that may befall the country. However, the Sri Lankan state does not have the capacity to carry out a criminal trial to completion without the interference with due process by criminal elements. If the state is not strong enough to ensure due process of the law, the criminal justice system cannot function.

This case has demonstrated an enormous weakness on the part of the government today as well as on larger state apparatus to ensure one of the most fundamental structures needed for social stability. The capacity of the state to carry out a criminal trial without allowing agents of the state to be intimidated is of immense value to society.

When the AG agrees to a compromise of this sort, he is seriously undermining the stability of the state itself. Moreover, the AG is undermining the legal process and respect of the public towards the courts of Sri Lanka. High courts -- courts in which serious criminal trials are held -- need to enjoy the confidence of the people to ensure a fair trial without being subjected to intimidation by criminals. Their compromised functioning at the hands of criminals equates to the state's compromised ability to safeguard social order. This threat is far greater than a threat caused by terrorists. When terrorists cause havoc, people are assured that the country's military is capable of dealing with that threat. But when the High Courts are threatened by criminals who do not allow a criminal trial to be carried out to completion by making threats to jurors or witnesses, then the public confidence in law enforcement as a whole is under serious threat.

In this compromise deemed suitable by the Attorney General, the people will see that a mockery of the law has taken place. If a murder charge can be dropped because jurors can be intimidated, or because the accused enjoy political patronage, there is no reason for people to trust the law enforcement capacities and legal obligations of the state.

The Executive President in charge of all executive functions in Sri Lanka should understand the gravity of this situation on society as a whole. If the belief that political patronage will allow criminals to sidestep their sanctions deepens, then criminals will find a way to achieve such patronage. As a result, the people would have no protection of any sort from criminals who enjoy political patronage.

The function of prosecutors in a society is one of the most important cornerstones of social stability. It is the prosecutor who passes the message on what is right and wrong in a society from a criminal justice point of view. The prosecutors' message of what is right and wrong is backed up by the state's capacity to punish people who disregard such messages. No other section of society has such a capacity. Religious persons may instruct society against murder but they do not have the capacity to sanction those who disregard their instructions. Only the Attorney General has that capacity.

When the people find out that the Attorney General is not carrying out his obligations, criminals who have the strength to threaten witnesses, jurors and even judges in the future may find an easy way of escaping punishment or getting a lesser punishment.