Presidential Commission’s independence not affected, AG tells IIGEP  
[Monday, September 24, 2007 - 8.30 GMT]   

The Attorney General has told the International Independent Group of Eminent Persons (IIGEP) relating to the functioning of the Commission of Inquiry (COI) appointed to investigate and inquire into alleged serious violations of Human Rights occurring in Sri Lanka that the Commission’s independence has not been affected by its’ decision to retain counsel of the Attorney General’s Department to assist the Commission at investigations and inquiries.  
  
In a public communication in response to the 3rd Public Statement issued by the IIGEP relating to the functioning of the COI he has urged the IIGEP not to make public statements that directly and unnecessarily affect public confidence in the Commission of Inquiry and on other public institutions of Sri Lanka such as the Attorney General’s Department, and to alternatively engage with the Commission and with such other institutions in a constructive manner, so as to ensure that the objectives of efficacious law enforcement and dispensation of justice pertaining to alleged serious human rights violations could be jointly and harmoniously met.
  
The letter sent by the AG to Justice P.N. Bhagwati, Chairman of the IIGEP is as follows:
  
21st September 2007
  
Justice P.N. Bhagwati,
Chairman,
International Independent Group of Eminent Persons,
IIGEP Secretariat,
Hilton Residences,
Colombo.
  
Response of the Attorney General of Sri Lanka to the
3rd Public Statement of the IIGEP
  
As stipulated in the Terms of Reference pertaining to the functioning of the International Independent Group of Eminent Persons (IIGEP), I in my capacity as the Attorney General of Sri Lanka is empowered to provide my observations and comments in the form of a response, regarding Public Statements issued by the IIGEP. Stated below are my observations pertaining to the 3rd Public Statement of the IIGEP, which on the face of it appears evidently to have been issued by the IIGEP to coincide with the ongoing 6th Session of the United Nations Human Rights Council, in Geneva, Switzerland, and therefore to possibly have a bearing on deliberations at the Council. You would recall that the IIGEP chose to release the 1st and 2nd Public Statements to coincide with the 5th Session of the UN Human Rights Council.
  
As the 3rd Public Statement issued by the IIGEP has received publicity, acting in national interest, I wish to respond to you through this public communication.
  
I am compelled to urge the IIGEP to respond objectively to the contents of my public communication to you (issued in June 2007) in response to your public statements (including interviews given to the media), rather than complaining of the words and terminology used by me. Without restricting your response to the words used by me, I would have thought that it would have been more productive, had you responded objectively to the contents of my communication.  
  
I wish to now deal with the several issues raised by you in the 3rd Public Statement.  
    
Participation of Counsel from the Attorney General’s Department in the Panel of Counsel from the Official Bar of the Commission of Inquiry

The appointment of the Attorney General of Sri Lanka is not based on political considerations. He holds an independent office. It was the Commission of Inquiry that invited the Attorney General to nominate a few counsel from the Attorney General’s Department to assist the Commission. The wishes of the independent Commission should be adhered to. The practice in Sri Lanka has been for counsel from the Attorney General’s Department to assist Commissions of Inquiry when a request is made by such a Commission. In the normal criminal justice system, the Attorney General does not direct the conduct of investigations. He merely advices investigators, when such advice is sought and generally when investigational endeavours by investigators have been concluded. Therefore, counsel from the Attorney General’s Department who assist the Commission do not face a conflict of interest. Nor is there any competing interests faced by such counsel. In any event, after the present Commission concludes its investigations and inquiries, it would become the responsibility of the Attorney General and his officers to launch criminal proceedings in the High Court and conduct such prosecutions. Therefore, there is valid justification in officers of the Attorney General’s Department continuing to function in the Commission.

The Commission is an independent body, and therefore a final decision on whether or not such officers should continue to assist the Commission should be taken by the Commission and not by His Excellency the President (as urged by Justice Bhagwati, when he met with the President on the 20th of August 2007) or by me in my capacity as the Attorney General. The Commission has already appointed two senior private practitioners [namely Mr. R.K.W. Goonasekera (who is an eminent and senior human rights lawyer and a one time member of the United National Sub Commission on Human Rights) and Mr. Ranjit Abeysuriya (President’s Counsel, one time Director of Public Prosecutions and one time President of the Bar Association of Sri Lanka)] and two other private Counsel to function as Members of the Panel of Counsel from the Unofficial Bar. This Panel is presently assisting the Commission and examining witnesses during Clause 8 investigations. In fact, in the investigation into the killing of 5 youths in Trincomalee, it is members of the Panel of Counsel form the Unofficial Bar, who are examining witnesses on behalf of the Commission. Furthermore, this scheme is much better than the scheme that you have previously advocated, where as you have suggested counsel from the AG’s Department ‘instruct’ members of the Panel of Counsel from the Unofficial Bar. Under the scheme developed by the Commission, the two panel of counsel are totally independent of each other. Therefore, even at this late stage, I hope you appreciate that the Commission’s independence has not been affected by its’ decision to retain counsel of the Attorney General’s Department to assist the Commission at investigations and inquiries.   
    
Providing financial autonomy to the Commission of Inquiry

As the Commission is not a permanent body and has temporary existence, the prevailing laws and financial regulations and associated practices would not permit the Commission to be empowered to maintain its own bank account or to obtain funds from sources outside the government. All necessary funds have been and would in the future too, provided by the Presidential Secretariat. Already a sum of Rs. 24 Mn has been spent by the Presidential Secretariat on behalf of the Commission. A further sum of Rs. 24 Mn has been allocated for this year out of a total allocation of Rs. 90 Mn. A further sum of money will be obtained from next year’s budget. Steps will be taken to ensure that, all requests for funds would be expeditiously processed and necessary funds provided to the Commission without any delay.  
    
Expeditiously establishing an efficacious witness protection programme based on new national legislation.

New draft legislation on providing assistance and protection to victims of crime and witnesses has been finalized by relevant officials of the government. Relevant policy guidelines have been formulated by the Law Commission and by the Attorney General’s Department. The policy is now before the Presidential Secretariat for final clearance by the President. The Ministries of Justice and Disaster Management & Human Rights will jointly sponsor the Bill and present it to the Cabinet. It is envisaged that the draft will be presented to the Cabinet of Ministers within the next two to three weeks. Thereafter, steps will be taken to present the Bill in Parliament under the ‘urgent bills’ procedure. It is likely that the new legislation would be in place within the next two months. However, without waiting till the new legislation is passed, the Commission of Inquiry can proceed to implement its own scheme of assistance and protection to victims of crime and witnesses. Necessary
 financial resources in that regard will be made available to the Commission by the Presidential Secretariat based on an approved budget. The Commission has taken meaningful steps to provide foreign training to officers of the Victim and Witness Protection Unit of the Commission. The Unit is already functioning, and its efficacy would increase after the training of its officers is concluded. It is the duty of the Commission, the IIGEP and others interested in the success of the Commission, to ensure that the public has confidence in the victim and witness protection programme of the Commission.      
  
In view of the foregoing, I urge the IIGEP not to make public statements that directly and unnecessarily affect public confidence in the Commission of  Inquiry and on other public institutions of Sri Lanka such as the Attorney General’s Department, and to alternatively engage with the Commission and with such other institutions in a constructive manner, so as to ensure that the objectives of efficacious law enforcement and dispensation of justice pertaining to alleged serious human rights violations could be jointly and harmoniously met.
  
  
Sgt.
………………….
C.R. De Silva, PC
Attorney General
  
 

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Last Updated Date: September 24, 2007 - 8.30 GMT