By Namini Wijedasa
Sarath Palitha de Silva, the newly appointed attorney-general, said last week there was no political interference in the attorney general’s department and that all officers were able to work according to their conscience.
Excerpts from the interview:
What would you do differently at the AG’s department?
I think there is nothing to do differently. What I will try to do is my very best during the tenure of my office just as I have done throughout my career. Law enforcement will have to be effective. The attorney general’s department has paid a pivotal role in law enforcement for a long period of time. We will try to enforce the law, according to our conscience, according to the law, and according to the constitution.
You handled criminal cases before you were appointed AG, didn’t you?
I was the head of the criminal division and I have been in the criminal division throughout.
Do you see an increase in crime?
I don’t think there has been an increase in crime which is worthy of consideration. With the increase in the population, the crime rate has to increase. With drugs being brought into the country, we have to expect the increase in crime to this degree. More than that, we have to make law enforcement stringent and I’m sure we will see a significant drop in the crime rate. The support of all law-abiding people would be necessary. I believe that 99 per cent of the people of this country are law-abiding. We have a very few others who violate the law and those are the people we have to deal with.
There is more media work now which highlights crimes and people have the opportunity of learning more through the media and various ways. As a result of that, crimes are reported more than they were those days.
So you feel crime is happening at the rate it did all these years except that it’s being reported more now?
I don’t say it’s being reported more now. What I say is that you get more activity now. If you take the electronic and other media, all those things contribute more towards giving the people more about criminal activity. I don’t think that is bad. It is good. As a result of that we are being alerted and then we take note of the fact but I don’t think the crime rate has increased significantly.
How would you enforce the law more effectively? Others before you have tried to achieve this noble objective and failed.
I don’t think they have failed. Maybe they could not achieve what they wanted to, to an appreciable degree but attorney general’s department has very little to do with law enforcement. The law enforcement authorities are the police.
Then why would you say the attorney general’s department would enforce the law when it’s not directly your responsibility?
It’s not directly my responsibility but what you asked was what we could do to reduce the crime rate. So what I was thinking was when you said “we”… I was not thinking of the attorney general’s department. I was thinking of the whole country.
But can the AG’s department contribute towards enforcement?
To this degree: When a crime is committed, it is investigated by the police and sent to the attorney general’s department. The attorney general’s department appears only in respect of grave crimes, before the high court. What we can do is to expeditiously conclude cases if possible and to monitor the police in respect of grave crimes. We are not in a position to monitor them in terms of all crimes. That is humanly impossible.
You observed in a recent interview that you don’t believe there is an increase in cases of child abuse.
Not that I don’t believe, I think child abuse would have been there even those days but I see a significant increase in reporting. The National Child Protection Authority has taken a lot of pains to propagate anti-child abuse activities and people who did not take it so seriously those days today come forward to make complaints.
They see it as a serious offence because the seriousness with which it should be viewed has been highlighted. As a result, even slight cases of child abuse are being reported. But I must tell you very rarely do we get cases where abuse is committed by force, violent abuse. By violent what I mean is where, let’s say, when a girl is dragged into some place and raped.
Those cases are very rare we need to view them very seriously. But the majority of the cases, I very confidently can tell you–at least 60 percent of the cases–are where young girls and boys were having a love affair, indulge in sexual activity and when this case is brought to the notice of the parents of the girl, they go to the police station and make a complaint. In a situation like that we see that the boy is about 18 and the girl is about 15 or something like that.
All those cases are also reported as cases of child abuse. But actually those are not cases where any sort of violence is involved.
It is necessary that we prevent those cases and the responsibility is on the parents and the teachers more than the law enforcement authorities. These offences are committed because they have the opportunity and the activities of these children are not well-monitored, maybe due to several reasons. Parents may not have the time or they may be involved elsewhere. As a result of that, they tend to neglect their children.
So the message that I can give to them is that they should monitor the activities of their children more, and try to see that they do not get the opportunity to indulge in this sort of activity. Most of the cases that have been reported are cases where young couples engage in consensual sex.
But some ministers have said Sri Lanka needs new, stronger legislation to combat increased cases of child abuse, including rape and other sexual abuse. Your opinion?
I think what they mean is that there must be enhanced punishment. Now we have amended the law and brought in minimum sentences in some cases. There was an amendment to the penal code in 1995 by which they introduced mandatory jail terms. But mandatory jail terms I think are not the solution to the problem. Judicial discretion I always thought was better.
Judicial discretion must be exercised in the proper case, then each case must be taken into consideration on its own merits, and an appropriate sentence should be given. What I feel is that the law as it stands today is strong enough. Law enforcement must be strong and the general public must cooperate with the law enforcement authorities. If that is done, I think we could overcome this problem to a very great extent.
For the past two or three decades, the AG appears to have deviated from its role of defending state interests and has become, more or less, a defender of the government. This means it is seen to be defending the government against each and every ill and abuse it does despite the constitutional role of the department being much greater and broader. How would you view this?
I don’t think the attorney general has been defending every act of the government. The attorney general’s role is advising the government and acting as the chief legal officer of the government. I can very confidently tell you that there have been numerous cases where the attorney general has advised the government—ministers, state officers—that we are unable to defend them. For example, if there is a police officer who has been involved in torturing any person, and if the Supreme Court issues notice under Article 11 of Constitution on the basis that there has been torturing or inhuman treatment of a person, the attorney general for the last several years has refused to defend that officer.
Have you heard this view expressed—that the AG’s department today will defend the government no matter what?
Some people have expressed views. Everyone is entitled to his own views but we have to take into consideration whether they are correct or not. I cannot speak of what happened in the past. But I can tell you that during my tenure of office I hope to be independent and I do not think there is anything that prevents me from being that. What everyone should understand is that the attorney general’s role is defending the government. We should not let the government do anything which will embarrass the government. If there is something that goes against the law, we should advise the government on that.
What is your position on accountability for crimes allegedly committed during the final stages of the war against the LTTE?
That I can’t answer because it’s a matter that is being looked into.
Former AG Mohan Pieris and External Affairs Minister GL Peiris, among others, have said the AG’s department will reopen the ACF case. What steps have been taken in this regard so far?
Attorney general’s department has nothing to do with it. Opening the investigation has to be done by the police. After the police conclude their investigation and then send it to the attorney general’s department, we will be able to look into the available evidence and tell about it.
The ACF files have not come to the AG’s department?
No, not to my knowledge.
It is repeatedly said that the AG’s department does not represent the state in torture cases. However, your officers appear at the initial stages to argue against the court granting the petitioner leave to proceed. Is it a policy of the AG’s department to appear at this stage, to prevent a case from going ahead?
Yes, that is because at that stage we do not know whether the Supreme Court will grant leave or not. There is an allegation that has been made against a police officer. And Supreme Court in such cases would want the attorney general to appear and assist court.
Why do you object to leave to proceed?
I don’t think we object. We make our presence there. Let me tell you that we have found several cases where false allegations have been made regarding torture, sometimes in order to prevent the attorney general from defending that officer. Simply because a person makes an allegation of torture we should not condemn the police. We have found several instances, medically supported, that the injuries that were found on the person who alleges police assault have been self-inflicted.
Did the Bar Association president meet you regarding the behavior of Rishard Bathiyudeen, minister of industry and commerce?
He did not meet me regarding the behavior. He wanted to inform me that the Bar Association has decided not to appear in court on that particular day. I would not have spoken to him on this because we are expected to take a decision only after investigations.
Isn’t it the AG who can prosecute the minister?
If there is a criminal offence committed by anyone, then it is the duty of the police to prosecute him. If it is a grave crime, the papers are sent to the attorney general’s department and the attorney general is expected to look at it and then take action.
What do you know about Minister Bathiyudeen’s actions against the Mannar magistrate?
What I know is what you know from the media. People of my standing should not comment on what we get to know from the media because an authentic report on investigations will be submitted to me. So I should wait for that patiently.
There was a practice of withdrawing indictments against politicians when they cross over from the opposition to the government side. For instance, there is the case of Chandana Kathriaracchi. The popular belief is that if you cross over from the opposition to the government, any outstanding charges against you, criminal or otherwise, would be dropped. Will this continue?
Let me tell you that the attorney general has no power to withdraw an indictment. The attorney general will go before court and request permission to withdraw an indictment. And the attorney general will have to give the reason as to why he is moving to do so. Then it is the duty of court to either accept that or to refuse the request.
I do not know the grounds on which the attorney general withdrew indictments previously but I’m sure the attorney general would have placed the reasons before court. There have been certain instances where the judges have said we are refusing. If the judge permits the attorney general to withdraw that shows that the judiciary has accepted the reasons placed before him. Supposing the judge made a wrong order, it is the duty of the aggrieved party to go to a higher court and get that order set aside. I do not know of even one instance before any court where anyone went to get the order of the judge set aside.
You have said that it’s not a problem that the AG’s department was taken under the president. Why is that?
Yes, because we have to work under some minister. So the president is the minister but there has been no influence. It does not affect the independence of the department at all. Even if we were under another minister, that minister was under the president.
So in your view everything is working perfectly well in Sri Lanka. All the officers of the AG’s department are able to work according to their respective consciences. There is political interference. The police are effective and efficient. The crime rate is not high…
Why do you think it’s not working perfectly well? I say the system is working perfectly well but there are a lot of difficulties we are confronting. Not political influence but our resources, our ability to work. How many hours do you think an officer of the attorney general’s department works? They don’t work from 8 to 4 but late into the night. I think we are doing fine. If we are not doing fine, don’t tell others, tell us. We will thank you and correct ourselves