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Until investigations are over Political prisoners cannot be released

2014 Oct 28

by Sulochana Ramiah Mohan

Former Attorney General, Palitha Fernando, who retired on the 14 October, said during his recent visit to the North, the members of the Bar there had made representations to him to reconsider the pending cases of the prisoners who were arrested under the Prevention of Terrorism Act (PTA) and Emergency Regulations and to see whether some of them could be released.
"I told them I will pass the message to the AG's Department team that works with the Northern Province and consider how they could be released. Besides the court working on their release, we should formulate some sort of a scheme to study the level of culpability and release them either through rehabilitation or for some other purposes," the former AG told Ceylon Today in an exclusive interview.
Excerpts of the interview:

Prior to your retirement, you visited the North. What was the occasion and what happened there?
A: We have now enforced a mechanism in the AG's Department. We have nine Additional Solicitors General, one for each of the nine provinces with two senior Additional Solicitors General. Earlier, we had only four additional Solicitors General. We increased the numbers because the Truth and the Reconciliation Commission made a strong recommendation that the AG's Department must be closer to the nine provinces. We are trying to enforce law in all provinces working closely with the Centre.
These Additional Solicitors General have 25 years of experience each and are fit to be the Attorneys General. With them there will be Deputy Solicitors General, State Counsels – all working with the Police Department. They will also work closely with the Divisional Secretaries and Provincial Secretaries whenever legal advice is sought to enforce criminal or civil law. They will work with the senior Deputy Inspector General of Police in each of the provinces. It would be a network and each Province will have a team comprising such officials and that team would be in charge, with each one knowing whom to contact for legal advice. They will now not call the AG'sDepartment, which will in return allocate it to the officers. Now, they know the process. All of them will be supervised by the Additional Solicitor General in the province.
Coming back to my Jaffna visit, I went to the North with a team headed by the Additional Solicitors General. I joined them to meet the Divisional Secretaries to discuss matters on serving the public better. These ASGs are expected to visit their respective provinces and get feedbacks.

Was it your first visit after being appointed the AG?
It was my first visit after the war. I also met police officers and members of the Bar. I spoke to them in Tamil. I was the first AG to visit the Jaffna, Kilinochchi, Mannar and Muttur Bar.

Did the Bar make any recommendation to you on the political prisoners. Did you promise them a solution?
A: They told me there are people. They did not refer them as political prisoners, but persons who committed offences under the PTA and the Emergency Regulations. Let me tell you that we have released a large number of them after they were rehabilitated. Yet, there are several in prisons and remand whose cases are pending and the Bar wanted me to reconsider them and see that some of them are released. I told them I would pass on the message, as I was retiring, through the team and consider how they could be released. The court will do the releasing but we must formulate some sort of a scheme where we can study the level of culpabilities and release them either through rehabilitation or on some other grounds. I cannot give any sort of an undertaking as this is a representation made to me. All what I could tell them is that I will do whatever could be done within the framework of the law.

Are you going to do something about the pending cases?
A: I have passed the message to the team that is in charge of the Northern section. There is a special team working on these cases. Once the evidence is gathered, it would be placed before the court. Then it will go to trial. If you are released early that would be done through the judicial process. I can only facilitate. Other than that, nothing can be done. They are aware of it. We will, however, not stand in the way.

Are there political prisoners who have not faced a trial. There are prisoners' families who have not heard of them yet? Why is that?
A: I don't know about that. We have indicted many, but the process, I should say, is very slow. There is a special team working on these cases. But certain cases are at the investigation level and are very complex. These offences are not committed in isolation so the evidence that is revealed has to be investigated because they are linked to cases which have taken place abroad. So in those cases, investigations are still on.

But if you are unable to find evidence, shouldn't these suspects be released without being kept in prisons without trial?
A: investigations are conducted by the police and they have to conclude the investigations. Until the investigations are over, there is nothing we can do.

There is a public outcry that the investigations are conducted in a very lethargic manner which slows the process and the AG's Department waits till the investigations are concluded. Why can't there be a swift investigation process in Sri Lanka?
A: If you look at India and Pakistan in the Asian region, that is how it is.

Should we generalize in this manner or compare with those big countries? Can't we have our own way of handling the legal structure?
A: All our countries are third world countries. We are not sophisticated in all areas and we do not have all the resources. Look at former chief minister of Tamil Nadu, J. Jayalalithaa's case, it took nearly 20 years to convict her. Investigations are time consuming due to lack of resources. Delays cannot be attributed to lethargy, it was spoken of delays in the justice system. There is no cure for that until we do something new.

What should be done, in your view?
A: There is a lack of court houses. Many cases are pending due to that. We are not purposely keeping anyone behind bars. We wait till the investigations are over to charge them. If there is no evidence it will take time. So there are many shortcomings.

Why does it take so long to gather evidence?
A: Yes, there are delays. We had an issue with the Government Analyst's Department as it hadn't proper facilities. But now we have a modernized Analysts Department with a modern building and equipment. We also have a space issue at the AG's Department. But now we have been given a plot of land near the Supreme Court and a spacious AG's Department will be there by 2016.
We also have a staff of less than 125 to deal with a 22 million population. So we need to increase staff but there is no space to accommodate anymore at the moment. There are 130 vacancies for legal staff but we cannot recruit till the new building is in place. The AG's office is very attractive to young lawyers.

Under any government, the legal side is always criticized and Sri Lanka is no exception. Can't we make a difference?
A: It's a wrong conception. Our legal system is one of the richest systems, based on the best principles of the English Law.

The system may be rich, but the practicing part of it is not rich enough. What is your view?
A: Sometimes there is unfair criticism about the legal system. Some say the law is not enforced properly. I don't agree with it. The law is enforced well but there are inherent difficulties which we have to overcome. We have enforced law to the maximum possible manner. We have not done anything against our wishes. I have worked according to the dictates of my conscience. I have done so, but sometime we have come under unwarranted, unfounded and unsubstantiated criticism.
I can boldly say that at no time did our indictments go against the law. There are certain things we cannot do, as it depends on the law. We cannot work under public and media pressure. Even in that Tangalle murder, I can openly say now that there was no political pressure exerted on me or my staff. Absolutely....not on me.

You were never pressured?
A: Not at all. Do you know how many Provincial Councillors and Parliamentarians we have indicted? We have even charged a Government Minister. I was also accused of releasing a man who was alleged to have sexually abused a physically impaired underage girl. How wrong was it? Actually, there was evidence to charge him. We went before the judge and said no evidence. It was up to the judge to decide to accept or reject it. As the AG I could only say there was no evidence against that man, which is the truth.

Recently, in Ratnapura, a case where a woman was beaten mercilessly, by a police officer, was reported. The video of that incident went viral. Even TV stations exposed the incident. However, after the officer was suspended from duty, after an inquiry, he was reinstated. This has been criticized very much by the public. What is the update on that incident?
A: Law enforcement has nothing to do with it. This woman was assaulted and was shown on TV. We need to get evidence first. TV coverage is not evidence.

Do you mean the video clip was'doctored'?
A: It can be. We are governed by an evidence ordinance. A video clip can be taken as corroborative evidence. There must be a complaint by the woman first. If the evidence is placed before us we will not hesitate to take it further.

Now what will happens to the Ratnapura case?
A: The investigation is on and it has to be brought to us. That is a matter for the police. Once the investigation is over we would be told. We will wait.

If you had seen it on the television, cant you make a request to work on the incident as the AG?
A: No. The AG comes into the scene only when the investigation is over. We don't go public. When I was the AG I never intended to give any interviews. If the police officer is reinstated, it's a matter that has to be dealt with the police. If we hear of the offence, we can tell them to investigate and send us the final report. We should not be prejudiced. Let us first collect the evidence in an unbiased manner. The Press attempts to convict the suspect. Even the judges say to listen to what is told in the court and never refer to the media coverage.

There is a hue and cry by the international community that the LTTE militants who surrendered to the government forces had gone 'missing'. For instance, NPC member Ananthi Sasitharan claims her husband, former LTTE hardcore member, Elilan had surrendered to the Armed Forces but there was no news of him thereafter. Her claim has stirred issues about what happened during the last phase of the war. Where is Elilan and what has happened to those persons who had surrendered to the government forces during the last phase of the war?
A: I don't know. Those are matters related to the police. Who was handed over to whom is not the matter we look into. Only when the evidence is brought before us, I mean visible evidence, then we can proceed. This has not been told to me and I cannot comment. Only if the evidence is sent to the AG and if you question me on the evidence or investigation file, can I reply on those lines.

What are the important areas that need to be improved to ensure a fast moving legal system?
A: We need to train the legal officers. They need foreign exposure. We don't have the resources to train them. The legal staff are very skilled and competent and its very easy to work with them but they are stretched to the limit. Their salary is meagre compared to the workload. We have done very well and in every major case, we got a conviction.

Is the conviction rate very low in Sri Lanka? Many say it's below 6%. If it's correct what is happening to the rest of the cases?
A: No. I should say the conviction rate in the High Court is very high – more than 85%. It's very unfortunate to hear that it is so low. A journalist too asked me some time back if the conviction rate is 4%. Overall, in all High Court cases, after the AG's indictment, the conviction rate is 90%. The 4% is arrived at in the cases taken where the incident happens but there is no evidence. There are cases taking place but no complaints are made. Such cases are collected and reported as 4% conviction. That is not the right way to look at it. Those are reported but not convicted. It is very rarely a person is acquitted after the AG's indictment.

How is the Corruption rate in Sri Lanka?
It does not come under our purview. I cannot comment without having all the details in front of me.

After you took over as the AG, was there any change brought in?
A: I did everything possible and then if there are changes the AG's Depatment staff should see the change. There is a massive shortage of court houses in the country. In the Matara High Court earlier, we have had about five cases per day but it's shocking that we have at least 25 legal cases per day to handle. We need more judges, but before having judges we need to improve the infrastructure facilities and have sufficient funds.

What is your final message to the public as a retiring AG ?
A: Please don't publish anything irresponsibly or speak irresponsibly. The Media can be extremely irresponsible. There was case where a couple left their new born baby on the doorstep of a house and had been in hiding watching what was happening to the baby. They were caught and a daring article, in newspaper, was published accusing the couple and basically sending them to the prison and the infant to the orphanage.

When the matter came up and the couple was arrested we came to know they were from two different castes and their families did not accept them. They left the baby at the doorstep and wanted to commit suicide. The magistrate hearing their story, ordered us to give them in marriage. They wanted to live with the baby as a family. We collected Rs 5,000 and gave them in marriage and they are living happily. Someone hearing the pathetic story offered the father of that infant a job. Also, the public collected money and got them a plot of land. The press stopped reporting the news with the couple being sent to the prison and baby being orphaned. That's all. The media stopped reporting only after sending the couple to the prison. Think before you state. Such reports can demolish families and lives.

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