IIGEP has exceeded its mandate

– Attorney General   

[Monday, June 25, 2007 - 11.00 GMT]

Attorney General C.R. de Silva has written to Justice P.N. Bhagwati, Chairman, International Independent Group of Eminent Persons (IIGEP) appointed by President Mahinda Rajapaksa to observe the investigations and inquiries conducted by the Commission of Inquiry established by the President to investigate and inquire into serious violations of Human Rights allegedly occurring in Sri Lanka since 1st August 2005 stating that in the view of the Government of Sri Lanka, the IIGEP has exceeded its mandate by indirectly proposing to the Government, that an international human rights monitoring mechanism be established or invited to come to Sri Lanka.

This was in response to two public statements made by IIGEP in the second week of June. The AG has particularly taken exception to the observations of the IIGEP, which were very critical of the role of the AG’s department in the working of the  Presidential Commission.

“Members of the IIGEP should in the view of the Government of Sri Lanka remain at all times absolutely impartial,” the AG has observed in his letter.

He has also expressed the opinion that Justice Bhagwati’s observations and comments are based on possible information given to him by some Assistants to IIGEP members, who appear to be totally innocent of what is actually taking place in the Commission.

The AG has requested Justice Bhagwati to hereafter desist from making such comments. “Your comments were inappropriate, incorrect and adversely affect public confidence in the Commission of Inquiry”, he has noted in his letter.

The letter:

Justice P.N. Bhagwati,
Chairman,
International Independent Group of Eminent Persons
  
Dear Justice Bhagwati,
  
1st & 2nd Public Statements of the IIGEP
  
I refer to the 1st and 2nd Public Statements issued by you on behalf of the International Independent Group of Eminent Persons appointed by His Excellency the President to observe the investigations and inquiries conducted by the Commission of Inquiry established by the President to investigate and inquire into serious violations of Human Rights allegedly occurring in Sri Lanka since 1st August 2005.
  
As you would recall, I did in writing express my objections on behalf of the Government of Sri Lanka to the contents of the 1st and 2nd Public Statements, primarily on the footing that the release of the Statements would prejudice ongoing and scheduled investigations and inquiries conducted by the Commission of Inquiry. In my written representations to you, I expressed reasons in detail as to why I object to the contents of the Statements.  This communication is presented to you, to reiterate my objections to the Public Statements issued by you and to in particular respond to matters raised by you relating to the role of the Attorney General and officers of the Attorney General’s Department assisting the Commission. In view of the serious harm and prejudice caused by your Public Statements to the Commission of Inquiry and to the Attorney General’s Department, I am compelled to issue this communication to you publicly.    
  
At the very outset, I wish to expressly state that, the Government of Sri Lanka is committed to ensure that the Commission of Inquiry fulfils its designated tasks independently, fairly and judiciously, in line with the Sri Lankan law and procedure, efficaciously and in the quickest possible time. With the view to supporting the independent Commission in fulfilling its mandate, the Government of Sri Lanka, its agencies and public servants remain available and ready to assist the Commission in whatever manner. Whilst the Presidential Secretariat has already spent Rs. 13 Mn on the activities of the Commission, a supplementary estimate for Rs. 90 Mn. has already been approved for this year, and the funds will be made available to the Commission.  Though necessary financial resources for the Commission are made available by the State, the Government of Sri Lanka expects the Commission of Inquiry to act independently in the discharge of its functions. The Commission has indeed acted independently and impartially. I have no doubt that it will continue to conduct its affairs in that manner.
  
Notwithstanding insinuations cast by the IIGEP on my department and its officials, we remain fully supportive of the Commission of Inquiry, and will continue to be of assistance to the Commission to the extent our services are required and solicited by the Commission.
  
I strongly believe that, it was most prudent on the part of the Commission to devote the first four months on developing the necessary internal structures, developing and adopting rules of procedures, recruiting staff and collecting necessary preliminary material required to conduct investigations and inquiries. Such preliminary work is in line with internationally accepted best practices. It is therefore unreasonable to allege that the Commission has delayed the commencement of investigations and inquiries and to further allege that hardly any progress has been made by the Commission.

It is indeed a fact that, the absence at national level of legislation for the protection of victims of crime and witnesses is affecting the Commission implementing a full fledged victim and witness assistance and protection programme. You would note that, Sri Lanka does not stand alone as a country which does not have such modern legislation. It is less than one fourth the countries in the world that has such legislation. Even at the United Nations level, model guidelines for such legislation are still being finalized. However, the Commission has already established its own Victim and Witness Assistance and Protection Unit and has also developed its own Assistance and Protection Programme. The Government is committed to fully fund the scheme and provide other necessary resources. There is some degree of protection being already offered to witnesses who have been summoned by the Commission. I understand that, no lay witness who requires protection would be summoned by the
 Commission until the Commission is in a position to offer proper protection. However, that in my view would not necessarily hamper the work of the Commission at this stage. Meanwhile, I have been personally involved in the drafting of a new Victim and Witness Assistance and Protection bill and it is envisaged that the draft bill will be submitted to the government through the Law Commission very soon.
        
One of the fundamental issues raised by you relates to the role of the Attorney General and his officers in the Commission of Inquiry. According to the Sri Lankan law, the Attorney General is the principle legal officer of the criminal justice system of the country. His role is quasi - judicial in nature, and statutorily defined. The Attorney General is empowered by law to consider notes of investigations pertaining to criminal investigations conducted into alleged offences, consider and institute criminal proceedings against offenders and prosecute such persons in courts of law. The Attorney General does not defend persons accused of committing offences. The Attorney General does not have the power to investigate or direct investigations. On certain occasions, the Attorney General provides legal advice to criminal investigators. However, as he does not manage, direct, supervise or take part in investigations, the conduct of criminal investigations remains the sole
 responsibility of the law enforcement agencies, such as the police.
  
Following the establishment of the Commission of Inquiry, the Commission wrote to the Attorney General requesting that nominations of a few officers be sent to the Commission, enabling the Commission to obtain their assistance. Accordingly, the Attorney General nominated five officers, whom the Attorney General believed possessed necessary qualifications, experience and expertise to assist the Commission. They are all officers with a proven professional track record, and bears an unblemished professional reputation. Upon receiving the nominations, the Commission being satisfied regarding the profiles of the nominees, appointed them to serve in the Panel of Counsel of the Commission. Since then, these officers have been assisting the Commission under the directions and supervision of the Commissioners.
  
Following certain representations made by the IIGEP, the Commission established two panels of counsel. These being the Panel of Counsel from the Official Bar and the Panel of Counsel from the Unofficial Bar. Officers of the Attorney General’s Department were placed by the Commission in the Panel of Counsel from the Official Bar.  Meanwhile, the Commission commenced taking steps to appoint a few private practitioners to the Panel of Counsel from the Unofficial Bar.
  
You would recall that, when you met with His Excellency the President, the role of the Attorney General when assisting the Commission and the establishment of these two panels of counsel were explained to you. On that occasion, you specifically stated that, in view of the explained role of the Attorney General and the new arrangements made, you had no objection to officers of the Attorney General’s Department continuing to assist the Commission. Under such circumstances, I am unable to understand the reason that prompted you to change your view regarding this matter, without even discussing matters with His Excellency the President or with myself.
  
In your second Public Statement, you have expressed concern regarding the contents of the Opening Address made by the Counsel from the Official Bar, who outlined the salient features of the case relating to the killing of the 17 aid workers of ACF, in Muttur in early August 2006. This inconsequential statement made by Counsel was a mere outline of the case scheduled to be investigated by the Commission and was made at the instance of the Commission. You would agree that, you were not present when the Address was made. However, the Chairman and Members of the Commission of Inquiry were present. Having heard the said Opening Address and being privy to material already before the Commission, the Chairman of the Commission has specifically ruled that, there was noting objectionable in the said Opening Address and that the Counsel had only used material before the Commission and in the public domain for his Opening Address. In the circumstances, you would appreciate that, your reservations are void of merit.
  
You have also expressed concern regarding the line of questioning by Counsel before the Sessions of Investigations being presently conducted. It is unfortunate that, you have deemed it fit to express such concern, when you were never present on a single day of such Sessions of Investigations. Out of the eleven Members of the IIGEP, only three Members were present on the inaugural day of Sessions of Investigations, and till the issue of the 1st Public Statement of the IIGEP none of the Members were present at such sessions of the Commission. (Since then, a single Member has been attending the Sessions. This is welcome.) During the initial weeks, the Sessions were observed by merely two Assistants of IIGEP Members. Both Assistants did not seem to understand and appreciate that, the Sessions being conducted were not a trial, were not even an inquiry, but was an initial investigation being conducted directly by the Commissioners in terms of clause 8 of the Rules of Procedure  of the Investigation Unit of the Commission. Based on certain statements made by the Assistants before the Commission, it has become apparent that they did not appreciate the legal practices and procedures pertaining to the conduct of criminal investigations in this country and the overall object of conducting an investigation under clause 8 of the applicable rules of the Commission.  In the circumstances, I am concerned that, your observations and comments are based on possible information given to you by some Assistants to IIGEP members, who appear to be totally innocent of what is actually taking place in the Commission. You would appreciate that, it would have been far more prudent, had you personally observed the proceedings of the Commission, and thereafter formed your views.
  
Justice Nissanka Udalagama the Chairman of the Commission being a qualified, experienced and highly respected former judicial officer of this country counting approximately 30 years of unblemished judicial service ending as a Judge of the Supreme Court, has concluded that Counsel from the official bar questioned the witnesses properly, and that they discharged their duties and responsibilities in the best interests of the Commission. Furthermore, as you and the other Members of the IIGEP who have never observed a single Session of the Commission would be unaware, as a direct result of the present line of questioning, learned Counsel questioning the witnesses have been able to already unearth a considerable amount of vital information that would assist the Commission to identify the possible perpetrators of the execution of the 17 aid workers of the ACF.
  
I wish to also add that, your comments about questioning of witnesses and the general conduct of investigations, amounts to an expression of direct insult at the honourable Commissioners whom the Government proudly believes are some of the most treasured sons and daughters of Sri Lanka . They are highly qualified and experienced professionals who reflect the true diversities of the Sri Lankan society. They have several things in common ; their untarnished reputation, honesty, sincerely, integrity, commitment to uphold the rule of law and the promotion and protection of Human Rights, and their true love to their motherland - Sri Lanka. These Commissioners have at all times been in total control over the proceedings and guiding the Counsel in the discharge of their duties. Whilst at times, they themselves have been questioning witnesses, on certain other occasions they have been indicating to Counsel the line of questing to be taken. In the circumstances, your assertions  about questioning amount to an insult to the honourable Commissioners.  I would therefore, request you to hereafter desist from making such comments. Your comments were inappropriate, incorrect and adversely affect public confidence in the Commission of Inquiry.
  
I wish to add that, the fact that, the IIGEP made two Public Statements in quick succession, at a time when the contents of the Statements were prepared in advance, and the second statement being issued merely four days after the first without any change in the activities of the Commission, clearly reveals that those who were interested in releasing the Statements were not acting in good faith and were seeking to time the releases in such a way that, the Government of Sri Lanka would be embarrassed at certain international fora and meetings. In fact, your officials have already admitted that the 1st Public Statement was issued to coincide with the Sessions of the UN Human Rights Counsel which took place in Geneva last week. I request the IIGEP to desist from engaging in such conduct in the future.
  

In conclusion, I request you Justice Bhagwati to be personally present in Sri Lanka , and to directly observe investigations and inquiries being conducted by the Commission of Inquiry. You would then be in a better position to publicly comment on the work of the Commission, the Commissioners and its officers including the Counsel. Furthermore, I request you not to rely on ‘Assistants’ of IIGEP members, in order to collect information regarding the manner in which the Commission of Inquiry, its Commissioners and officials are engaged in the discharge of their functions.  As you would appreciate, His Excellency the President invited the eleven members of the IIGEP to function in Sri Lanka observing the investigations and inquiries of the Commission. That was upon satisfying himself regarding your eminence. The President or the Government of Sri Lanka did not have any role to play in the selection or appointment of the ‘Assistants’. Therefore, I would urge you and the other  members of the IIGEP to personally observe the activities of the Commission and thereafter form your views.
  
I wish to also request you to as the Chairman of the IIGEP to advice your fellow Members not to act in excess of the mandate vested in the IIGEP. As you are fully aware, the mandate given by the President, is for the IIGEP to observe the investigations and inquiries conducted by the Commission and to propose correctional action if required. It does not enable or empower the IIGEP to observe investigations and inquiries conducted by the routine competent authorities, and in particular judicial proceedings. Nor would it empower for example the IIGEP to interview or record the statements of possible witnesses either in Sri Lanka or overseas. However, it has now come to light that, on a recent date when the Magistrate conducting inquiries into the killing of the 17 aid workers of ACF was conducting proceedings, a Member and an Assistant of the IIGEP had been present at the Magistrates Court, observed the proceedings, gone into the Magistrate’s chambers (un-invited) and  thereafter handed over to the Magistrate a Report on the case and its investigations prepared by the International Commission of Jurists. This report is highly critical of investigations conducted by the routine competent authorities. As you would being a former judicial officer appreciate, this amounts to not only acting in excess of the mandate, it amounts to an improper interference with the judicial system of this country. Furthermore, it reflects absence of impartiality by at least one Member of the IIGEP. Members of the IIGEP should in the view of the Government of Sri Lanka remain at all times absolutely impartial and should refrain from engaging in such improper conduct.
  
I wish to also add that, in the view of the Government of Sri Lanka, the IIGEP has exceeded its mandate by indirectly proposing to the Government, that an international human rights monitoring mechanism be established or invited to come to Sri Lanka .
  
My officers regarding whom both the State and I have the highest confidence, will remain available to serve the Commission, to the extent their services are required and solicited by the Commission. They will continue to act in accordance with the Sri Lankan law and practice and in the best interest of the Commission. If however, let alone a majority of the Commissioners, even if one honourable Commissioner were to indicate that officers of the Attorney General’s Department would not be required by the Commission, I will most readily withdraw my Counsel from the Commission. However, I regret to inform you that, I am unable to withdraw my officers from the Commission, due to misinformed, incorrect and partial conclusions reached by the IIGEP.
  


 

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Last Updated Date: June 25, 2007 - 11.00 GMT