Attorney General’s decision to represent alleged torture perpetrators undermines the rule of law

June 19, 2009

A Statement by the Asian Human Rights Commission

Amarakoon Dissanayake Sarath Kumara went to the Supreme Court to complain that he was assaulted by several police officers, and was also abused by them. He was then forcibly taken to a police station where he was falsely charged and produced before a Magistrate’s Court. Due to the attack he was seriously injured and had to be hospitalised, following his ordeal he has suffered headaches and pain for a considerable time. Like many who complain about torture he went before the Supreme Court and filed a petition for fundamental rights. In his petitioner he complained that article 11 of the Constitution, which prohibits torture, had been violated by the police officers who attached him. The Supreme Court, having considered the case granted leave to proceed.

It was at the stage of filing answers by the respondent police officers that Sarath Kumara faced a surprise. For a long time now the Attorney General of Sri Lanka has not appeared for any state officers who are respondents in fundamental rights applications which include violations of the prohibition against torture. However, in Sarath Kumara’s case a senior state council appeared before the Supreme Court and stated that the Attorney General will appear for the alleged perpetrators of torture in this case.

Why was Sarath Kumara, who claimed to be a torture victim and a victim of human rights abuse treated differently by the highest legal office in Sri Lanka? The Attorney General’s office offered no explanation to Sarath Kumara as to why he was being treated differently.

This has given rise to the speculation that the Attorney General’s Department seems to be changing its policy of not taking the side of alleged perpetrators of human rights abuses, as against the citizens who complain of torture and other violations. If this is the case then the Attorney General’s Department should have made a clear statement of the change of its policy because this is a matter of serious importance to the public.

The Attorney General in Sri Lanka is also the chief prosecuting officer relating to all crimes, including the crime of torture, which is recognised as an offence punishable by a minimum of seven years of rigorous imprisonment and a fine of RS 10,000/=. For example if the respondents cited by Sarath Kumara were to be prosecuted for torture it is the same Attorney General’s Department that has to prosecute the same police officers that now it has undertaken to defend in the Supreme Court. Therefore, clearly there is a conflict of interests that can jeopardise Sarath Kumara’s chance of seeking justice for his claim of torture.

The duty to investigate the complaint of torture by Sarath Kumara is with the police and often special police units are assigned to investigate such complaints. Once the police officers investigate a complaint they go with their file to the Attorney General’s Department. However, the Attorney General’s Department has already made up its mind to defend these alleged perpetrators. Therefore the police officers who investigate the crime cannot expect an impartial assessment of their case from the same department. It may well happen that once the police investigators know that the Attorney General has already undertaken to represent the alleged perpetrators, they may be discouraged from investigating the matter altogether.

Sri Lanka has one of the worst policing systems in the world. The allegations of corruption and that of the use of torture are so frequent that the crisis of the system has been admitted by the highest officers of the police themselves. Former Attorney Generals have also publicly stated the crisis facing the policing system. The Supreme Court, over and over again, has pointed out the failure of the high ranking officers to take effective measures to prevent torture and other abuses of human rights by the police. The parliament with rare unanimity agreed when passing the 17th Amendment that Sri Lanka’s police is politicised, meaning that it is working under politicians and not within the framework of the rule of law.

Under these circumstances the Attorney General’s Department’s decision to make representation on behalf of alleged torture perpetrators will contribute to the worsening of the already bad situation of policing in Sri Lanka. It is to be presumed that when a decision is taken by the highest legal office in the country it must have seriously considered the implications of its actions on the entire rule of law system and on the lives of the people. The decision taken by the Attorney General’s Department in this case is one that will frustrate the objectives of the constitution which has allowed citizens to come before the highest court to complain about human rights violations.

When the ordinary citizen comes with such complaints against errant officers and the state itself comes with all force to defend the alleged perpetrators, the credibility of the whole exercise is at stake. The public should subject this decision of the Attorney General’s Department to public debate and attempt to deal with the threat forced by this decision to the protection of their rights.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation monitoring and lobbying human rights issues in Asia. The Hong Kong-based group was founded in 1984.


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