By Ayesha Zuhair
Newly appointed Attorney-General (AG) Palitha Fernando, in an interview with the Daily Mirror, outlines his vision for the Department and opines that expeditious disposal of cases is the key to reducing the country’s crime rate.
The AG points out that coordinated efforts are required to combat crime, and appeals to the general public to extend their fullest cooperation to the law enforcement officers so that perpetrators may be swiftly brought to book.
Q: Why did you choose to enter the legal profession, and subsequently the AG’s Department?
I never wanted to be an Attorney-at-Law. No one in my family was in the legal profession, and I happened to be the first to enter the profession. I wanted to enter the Medical Faculty as I had studied science but a new system called the District Basis System was introduced the very year I was to enter university. As a result, I was not able to enter the Faculty, although people who had obtained the same results the previous year were able to do so.
So I joined the Sri Lanka Law College as a historical accident! But I must say that I debated at Royal and was a member of both the Sinhala and English debating teams. Some of my teachers at that stage thought that law was the best profession for me. But I never thought that way, and it so happened that I entered the Sri Lanka Law College.
I joined the AG’s Department in 1980. Prior to that, I apprenticed under Eardley Perera and he thought that I should join the Department at least for a short while. I never found the unofficial bar attractive as I never found any pleasure in defending offenders nor could I charge fees!
As a result, I joined the AG’s Department and from the day I joined, I fell in love with it. I have done everything that I could for the Department. I had the opportunity of working with seniors whose guidance helped me come to where I am today. Therefore I do not regret being in the Department though financially I could have been in a better position in the private Bar. Those of my batch who took to private practice are a thousand times richer than I, but I am a thousand times happier!
Q: What would you like to achieve as AG?
I want to improve the conditions in the Department and make it more efficient. In particular, I want to see that junior officers, minor and clerical staff have better conditions. I am very happy with what I get as AG but I know that the junior officers are undergoing tremendous financial difficulties. They have been contending with numerous problems for a long time.
Q: What challenges do you see in your current role?
The AG’s office is considered to be a very hot seat by many; that there can be many pressures. But it is not so. If you do something according to your conscience and if you can defend what you do before man and God, then that is what is expected.
Q: No doubt the AG is the government’s legal adviser and acts as its lawyer. But do you think the AG has a much broader mandate in safeguarding the public interest even against the government?
The AG is the chief legal officer to the State. The AG can advise government departments and the Police. There is a public petition system which has been in the Department for a very long time, through which we entertain petitions from the general public. It can be on a criminal or civil matter or on any matter in which the government is involved. We consider these petitions carefully, and wherever possible we try to give them some sort of relief by advising the State authorities to give them that relief.
Q: The fact that your Department comes under the President’s Office is seen as problematic by many. What are the alternatives?
Being under the President’s Office does not in any way affect our duties. What is expected of us is to do justice and I think being under the President will not in any way influence that goal. In all instances, we try to give correct and independent advice.
Q: Under the 17th Amendment, the AG was appointed by the President with the approval of the Constitutional Council. However, with the enactment of the 18th Amendment, the President can appoint any person of his choice, and all he has to do is to inform the Parliamentary Council of his selection and seek its observations. Therefore, the AG could be inclined to safeguard the interests of the President, and not necessarily those of the people. How can people be confident that your Department is free from political influence?
When provisions were made for the Constitutional Council under the 17th Amendment, many people thought that it would win the confidence of the people because appointments to key offices were made with the approval of the Council. However, there were many difficulties which made it impossible to constitute the Council and it ended up in a deadlock.
To resolve this, one AG advised that there is the theory of necessity; that when there is a deadlock and it is not possible to move forward, something can be done out of necessity. Since the Constitutional Council was not appointed due to various difficulties, Heads of State at that time had to ignore that provision. There was no other alternative. To overcome this difficulty, the system of the Parliamentary Council was introduced by way of the 18th Amendment.
In my view, it all depends on the person who is appointed. It is up to that person to act independently. Even if a person is appointed with the approval of the Constitutional Council, if that person decides to be partial then what is the remedy that is available? Therefore, I think it is not the process but it is the individual.
When Neville Samarakoon was appointed the Chief Justice, many people protested against his appointment. But will anyone today say that Neville Samarakoon was not independent? I do not think that political influence can bring in any pressure to do the wrong thing, if one does not want to do the wrong thing.
Q: The deterioration in the law and order situation of the country is one of the most pressing issues today. It seems that the criminal justice system is not working effectively. To what reasons would you attribute the sudden surge in crimes, especially crimes against women and children, and what is the solution?
The law has to be strictly enforced and steps taken to prosecute as early as possible. Expeditious disposal of cases, where people know that a person who committed a crime has been dealt with will serve to reduce the crime rate significantly. All those who are against criminal activities should cooperate and make a coordinated effort to bring down the crime rate. It is very important to cooperate with the law enforcement authorities so that those who commit offences are brought to book expeditiously.
Q: There is strong popular support for the death penalty. Do you think that capital punishment will serve as a deterrent to crime?
Enforcing the death penalty is an irreversible process and I do not think that it serves as a deterrent. In my view, it is far better to encourage people to move towards religion. That is what we lack. Today, we live in a highly competitive society, and our real cultural and social values are not there any longer. The protection of the family is no longer to be seen. As a result of that, I think we are invariably drawn towards crime and criminal activity.
Q: Wouldn’t you advocate more stringent or alternative methods of punishment, particularly in relation to sexual abuse of children?
A large number of cases of sexual offence are reported. But sexual offences committed violently are very few. I do not disagree that there are cases where children are abused by their caretakers. But I can say with confidence that the majority of the cases are cases where young couples elope and engage in sexual activity, and each such case is reported as a case of sexual abuse.
I think prevention is much better than cure. There is a duty on parents and teachers to look after their children more than they would have done previously. Now there are lots of opportunities. Parents are not there to look after the children and are sometimes away in their employment. Sometimes the mothers are away in the Middle-East. All these factors contribute to the reported increase in cases of child abuse.
So I do not agree that there is a very large increase in the cases of child abuse. Child abuse cases are being reported today because there is a lot of propaganda against child abuse. The cases that would not have been reported previously are being reported today.
People must be interested in law enforcement, and must cooperate with the law enforcement officers as much as possible. I believe that 99% of the people of our country are law abiding citizens. There are very few violators of the law and it is those violators who have brought about this situation which tarnishes the image of the country. I would request the general public to cooperate to the maximum with the law enforcement officers and isolate the law-breakers. The majority would then prevail.
Q: How do you view the performance of the Police in this respect?
In my view, the majority of the police officers are good and efficient. But there are a few who act in a way that does not help to build up the image of the Police or to help law enforcement. They have to be identified and dealt with as strongly as possible. Then we have to monitor police activities as much as possible. It is absolutely necessary that we have a people friendly police force, where people will be able to go to the Police station without any fear. If that can be built, and if we can have that sort of connection between the people, the Police, and the law enforcement authorities, I think that will help in no small measure to make the criminal justice system more efficient.
Q: Laws delays are another serious issue. According to assessments, there are over 650,000 cases piled up in various courts. What are your plans to expedite these cases?
Yes, there is a backlog and expeditious disposal is of utmost importance. First, we should increase the number of court houses and judges. Cases must be distributed among all the courthouses, and all efforts must be made to conclude them as early as possible.
Second, we have to find out the cases remaining in the High Courts. I am told that at least 40 per cent of the cases in the High Courts are more than 10 years old. I am going to call for statistics to track down the cases which are over 15 years old, and give instructions so that those cases are concluded without delay. COURTESY:DAILY MIRROR