The Review, in this Joint Issue, publishes some critical reflections on the inability of Sri Lanka’s domestic institutions to deliver justice and in particular, examines the question of prosecutions in respect of torture, enforced disappearances and extra judicial executions. The role of the Attorney General is pivotal in this context.

Indeed, the statistics speak for themselves, as reflected upon in the first paper published in the Review, “A ‘Praxis’ Perspective on Subverted Justice and the Deterioration of Rule of Law Norms in Sri Lanka.”

Thus,

‘The decrease of public confidence in the office of the chief law officer of the land; the Attorney General (AG) has been marked in recent years. The prosecutorial record of the Attorney General’s Department in respect of grievous human rights abuses has not been commendatory with very few successful prosecutions being evidenced in past decades of thousands of enforced disappearances and extra judicial killings.’

The same is true of prosecutions for acts of torture in terms of the Convention Against Torture and other Inhuman and Degrading Punishment Act No 22 of 1994, with no convictions during the first ten years since the law was enacted and only three convictions thereafter. While at no point is kangaroo justice advocated with convictions to be manifested purely for the sake of bolstering the convictions rate, there is no doubt that the question of legal accountability for grave human rights violations needs to be substantively addressed. This is a question that the Review will concern itself with in great measure during the coming months.

The problem of obtaining requisite data (including judgments, court orders and case records) that are indispensable in order to engage in sustained and thorough analysis, has emerged as a question of grave concern in Sri Lanka. For example, the efforts of the Law and Society Trust to obtain copies of relevant decisions of the High Courts in respect of convictions/acquittals for enforced disappearances, (prosecuted interalia as crimes of abduction or keeping in unlawful confinement), have been fraught with difficulties in the absence of a right of access to this documentation.

Indeed, obtaining even the case numbers in this regard has not been possible due to the lack of a publicly accessible and comprehensive data base. Equally troublingly, the official data furnished by the Government of Sri Lanka (GOSL) to the United Nations treaty bodies in pursuance of its periodic reporting obligations is unclear and inconsistent as is specifically highlighted in the first paper published in this Issue. This is a serious problem that ought to be collectively addressed by domestic and international human rights monitors.

The second paper published in the Issue, namely “Judicial Review of the Statutory Powers of the Attorney General in the Prosecutorial Process; Some Thoughts” engages in an examination of the relevant case law and suggests an amendment to the Code of Criminal Procedure Act No. 15 of 1979 (CCP Act), viz; a new Section numbered as Section 401A which would subject the powers of the Attorney General in relation to arbitrary discharges/committals for trial by a magistrate, to the revisionary jurisdiction of the Court of Appeal in terms of Article 138 of the Constitution of Sri Lanka.

Judicial reluctance to intervene in regard to the exercise of statutory powers of the chief law officer of the land is a special factor that emerges from this analysis. Readers interested in obtaining further perspectives in this regard are further referred to the LST Review (Vol 15, Issue 211 May 2005) “Judges and the Law, Public Accountability of the Attorney General, Prosecutorial Discretion and Fair Trial” for, in particular, the relevance of the decision of the Supreme Court in Victor Ivan vs Sarath Silva, Attorney General, [1998] 1 Sri LR, 340 in this context.

The third paper in this Issue also focuses on the question of justice in regard to prosecution of grave human rights violations and examines the manifold practical obstacles that hinder the realization of this objective. The fourth publication concerns an important recent decision of the Court of Appeal quashing a circular issued by the Deputy Inspector General (DIG) Personnel reinstating police officers who had been interdicted consequent to their indictment for enforced disappearances, as being ultra vires the Establishments Code. This is succeeded by the draft Bill for the Protection of Victims of Crime and Witnesses in regard to which the Review would be publishing a critical review in the following months.

The final article in this Joint Issue is a good contrast to the relatively ‘legalistic’ preceding papers in that it is a report of a recent civil society mission to Batticaloa, which eloquently highlights the plight of the internally displaced persons (IDPs) in the resettlement process and calls for greater consultation of the IDPs as well as inclusion of non governmental organisations, relief and humanitarian agencies in the process. The inactivity of the Human Rights Commission of Sri Lanka is of note in this respect.

Two findings of the field mission are of specific importance, namely that there should be no intimidation or coercion including the use of armed military personnel to collect people for resettlement, including the threat of cutting off food rations or not providing relief assistance, in order to ‘engineer’ consent to return and that displaced people should be reassured that if they choose not to return, they will continue to receive rations and will not face repercussions, including being deprived of resettlement packages when they do return.

Kishali Pinto-Jayawardena