The Government has announced its intentions to establish an Independent Prosecutor’s Office (IPO), following criticisms levelled at the Attorney General’s (AG) Department for not acting independently in the pursuit of justice for notable cases.
The Attorney General’s Department, coming under the Justice Ministry, holds the office of the Attorney General of Sri Lanka – the chief legal officer of the State and the head of the bar. Presently, the AG performs three key functions:
- As Adviser to the Government
- In the legislative process
- As Chief Prosecutor
The AG’s third role – as Chief Prosecutor – has especially come under intense scrutiny in the past two weeks, when the AG’s Department ordered the discharge of three suspects (former Army Intelligence Officer Premananda Udalagama, former Mount Lavinia Crimes OIC SI Tissasiri Sugathapala, and former DIG Prasanna Nanayakkara) in the investigations into the murder of Editor Lasantha Wickrematunge.
In a letter regarding the matter to Prime Minister Dr. Harini Amarasuriya, Wickrematunge’s daughter, Ahimsa Wickrematunge, highlighted a “mountain of evidence” against DIG Nanayakkara and the value of Inspector Sugathapala as a prosecution witness against those who sought to prevent an investigation into her father’s assassination.
The Sunday Morning’s ‘The Black Box’ reported that in a later meeting with the AG, Criminal Investigation Department (CID) officers, and the President, the CID had detailed the evidence against the three suspects the AG was attempting to dismiss.
In a U-turn on Wednesday (12), the AG reversed his decision to discharge the suspects and has instructed the CID to not proceed with his earlier instructions.
Centre for Policy Alternatives (CPA) Senior Researcher Bhavani Fonseka questioned whether the AG’s Department could continue to function “in light of everything that has happened in recent days”.
“The AG’s Department as it stands cannot continue because there are both questions of credibility and capacity. What the Government promised in 2024 is to set up a mechanism that is fully independent and can carry out prosecutions without the burden of the AG’s Department’s other responsibilities and also without the political interference that has happened in the past,” said Fonseka.
Longstanding allegations
The AG’s Department has long been perceived to be under political pressure from the government of the day.
Instances in the recent past which have further validated these perceptions include the AG’s Department being brought under the Presidential Secretariat from 2005 to 2015; the appointment of Mohan Peiris, PC as the AG while having functioned as the legal adviser to the Cabinet; and the non-action regarding the Aluthgama riots.
Due to these longstanding allegations, an Independent Prosecutor’s Office has been proposed by various parties on multiple occasions over the years.
The National People’s Power (NPP), in its manifesto before the 2024 elections, promised to introduce a “Directorate of Public Prosecution (DPP) as a mechanism to eliminate delays within the judicial system and [establish] a main DPP office and sub offices in the provinces which will remain independent of the AG’s Department to conduct cases on behalf of the government”.
Fonseka said it was important to question the Government on whether it would establish a separate institution altogether or one that would work with the AG’s department.
“To establish a separate entity, constitutional and legal reforms will need to happen. The Government doesn’t look like it will push constitutional reforms this year or next year, so is it just looking at a structural change or a practical element that oversees prosecutions that don’t need constitutional amendments?” she questioned.
DPP of old
Sri Lanka had a Director of Public Prosecution from 1972 to 1978. However, Faisz Musthapha, PC, who served as a Deputy Director of the then DPP, told The Sunday Morning that it “unfortunately functioned at a marginal level”.
“The DPP functioned under the authority of the AG and didn’t function as a separate entity. There were high expectations, but the scope was very limited and it made very little impact. However, there is a compelling need to consider this issue even today,” said Musthapha.
An idea of Felix Dias Bandaranaike, which Musthapha termed as “being ahead of his time,” the office of the DPP was abolished in 1978 by the then Government.
“The office of the Attorney General is of a hybrid nature. He has been described as the head of the bar and the chief legal officer of the State. But intrinsically, his complex functions may present a conflict of interest.
“He is required to give legal advice to the Government, but at the same time he is the Chief Prosecutor and is also required to give advice to the Government on constitutional matters. He wears so many caps; on the one hand he is regarded as the Government’s lawyer and on the other hand, the advice he gives should be apolitical,” explained Musthapha.
Therefore, he proposed a system where the AG is recognised as a political appointment and remains as “an adviser to the Government and the Government alone”. The prosecutorial discretion, the institution of criminal proceedings, and withdrawal of indictments should be left to a separate entity, said Musthapha, pointing to models such as the Crown Prosecution Service in the UK as examples to follow.
“I don’t think a constitutional amendment is required to create a DPP as the AG can continue to perform his functions as spelt out in the Constitution,” he added.
“This suggestion is not an affront to the present incumbent. He commands the confidence of the bar. However, independence is relative to the individual. The office should be considered independent of the holder. We should not depend on the traits of the individual holder,” he said.
Musthapha referred to a recent instance to demonstrate the “crying need for an independent DPP”.
“There is a case where a well-known individual was arrested. He had given an interview in which he defended the continuance of personal laws at a time when ‘One Country, One Law’ was touted by the then Government. His comments were carried on TV. The then Minister of Defence told the press that he would cause this individual to be arrested and questioned.
“The press carried statements from the ‘spokesperson’ of the Attorney General that the AG had advised the Police to arrest him. He was in fact arrested and thereafter held on a detention order issued by the President,” said Musthapha, explaining that the then Attorney General had indicted this individual under the International Covenant on Civil and Political Rights (ICCPR).
“The High Court Judge threw the case out even without calling for a defence. The Judge pointed out that the indictment was based on a portion of the speech and that the entirety was in fact a plea for national unity and religious cohesion.
“The individual arrested subsequently filed a Fundamental Rights application and the Supreme Court held that even the arrest was unlawful. Fortunately the Judiciary of this country stepped in to defend the citizen’s rights,” he said.
Revisiting the justice system
However, Fonseka stressed that merely having an IPO would not “fix everything,” urging the need to revisit the justice system.
Former President of the BASL Saliya Pieris, PC told The Sunday Morning that an IPO must not be established to merely suit the whims and fancies of the government in power, nor should it be based on popularity.
For this reason, the independent prosecutor would have to be insulated from outside pressure including those emanating from Government and public opinion, he said, adding that this must include the processes pertaining to appointments and recruitments.
“Politicians including those in power will need to keep away from bringing pressure to bear on the new office,” he noted.
He further highlighted the challenges in setting up a new office, from recruiting competent, well-paid staff to operationalising the office, especially given Sri Lanka’s experience in establishing new institutions, “which has not been great”.
He stressed that such an office must be established with wide public acceptance or it could be abolished after a few election cycles similar to what had happened to the DPP in the 1970s.
“Ultimately, the independence of any office rests on the strength of its leadership and on the qualities and abilities as well as the integrity of its officers,” said Pieris.
Noting that the proposal for the office of an independent prosecutor came from the perceptions that had arisen over the independence and integrity of criminal prosecutions in Sri Lanka, he said there was an apprehension that governments pressurised the AG’s office to both discharge suspects who should be prosecuted as well as to prosecute cases which ought not to be prosecuted.
“There is also a feeling that sometimes criminal cases are either soft-pedalled or vigorously prosecuted, depending on the party in power. Unfortunately, the acts and omissions of a few officers have over the years lent credence to this perception.
“In my view, there are many officers in the AG’s Department who conduct themselves to the highest standards and have acted independently and impartially according to law. Among them are the present Attorney General.”
Structural challenges
In its 2023 Performance Report (latest available), the AG’s Department notes four key challenges: a large number of legal vacancies, a large number of non-legal vacancies, insufficient funds for daily tasks, and insufficient infrastructure facilities for State counsels working outside of Colombo.
Furthermore, the department’s Crimes Division had 7,310 instruction files remaining to take action as at 31 December 2023, along with 496 court cases.
Fonseka stressed the need for a larger discourse as to why Sri Lanka had not seen through or progressed in indictments and prosecutions in relation to human rights violations and corruption cases over the years.
State authorities have long been accused of committing human rights violations, and failing to acknowledge, investigate, or prosecute them – especially alleged human rights violations which occurred during the 30-year-long civil war.
Former MP M.A. Sumanthiran, PC noted that in the pursuit of justice for war crimes, an Independent Prosecutor’s Office in Sri Lanka consisting of Sri Lankans was of “no use”.
“The 2015 UNHRC resolution HRC 13/1, which Sri Lanka co-sponsored, specifically refers to four categories: investigators, prosecutors, defence lawyers, and judges. It states that for these four categories, the participation of Commonwealth and other international persons is essential. Sri Lanka also agreed that a prosecutor’s office in which international prosecutors participate will be permitted and at the investigation stage as well,” he said.
Recent proposals
The Justice and National Integration Ministry on Monday (10) said that it had decided to set up an Independent Prosecutor’s Office, and as a first step, a committee would be established to develop a concept paper about the matter.
The committee will consist of the AG or a representative of the AG, the Justice Ministry secretary, a senior judge, and the BASL president or a representative of the BASL.
In the Cabinet press briefing the following day, Cabinet Spokesperson Dr. Nalinda Jayatissa said that the Attorney General’s Department would not be abolished with the establishment of the IPO. The proposed office is expected to streamline prosecutorial functions, reduce delays, and improve accountability within the justice system, according to Dr. Jayatissa.
(Source: Attorney General’s Department 2023 Performance Report)