Does an apology suffice where torture is alleged?
In 2002, the Supreme Court of Sri Lanka declared in a fairly run of the mill case that “the state is responsible for the law. The law is made for the protection of all citizens rich and poor alike. It is therefore the duty of the state to make its machinery work alike for the rich and the poor’ (Samarakkody Arachchige Don Sripati v. Sub-Inspector Wijesinghe and others, SC (FR) App. No. 213/2001, 31.05.02).
Violation of a constitutional principle
Admirable sentiments, articulated at a time when the Court took an interventionist stand in protecting rights. It was in this pursuance of this same thinking that the judges refused to accept the withdrawal of an application by a petitioner particularly in regard to complaints of torture and after the initial step of leave to proceed had been granted.
The rationale was that it was not a personal injury in issue but a constitutional principle that had (allegedly) been violated. Therefore the Bench insisted on hearing the context relating to the withdrawal of the application and retaining to itself the discretion to decide whether a withdrawal was appropriate or not. In many instances in fact, it declined to do so when it was found that the attempt to withdraw had been prompted by the threatening of the complainant by the police officers accused of abuse of power.
These are reminiscences which came forcibly to mind this week when reading media reports that the Attorney General of Sri Lanka had thought it fit to intervene on behalf of the Aluthgama Crime Division Officer-in-Charge in a fundamental rights petition enabling an apology to be tendered for settlement in the Supreme Court. The petition had been filed by a manual worker of minority ethnicity resident in Aluthgama alleging arbitrary arrest and torture. He had also alleged that the police had resorted to a common practice of filing fabricated charges against him to intimidate him. The petitioner had already been given leave to proceed on his complaint by the Court.
Questions for public scrutiny
There are several questions that arise for public scrutiny. These matters are all the more important as we recall with grievous dismay, the communal disturbances in Aluthgama aimed at members of the Muslim community some years ago around these same time.
In addition, the fact that a manual worker of minority ethnicity plucked up sufficient courage to appeal to the Supreme Court in this instance, defying the establishment police hierarchy in that area is by itself quite wondrous. It illustrates precisely what the Court itself said in the Samarakkody case one and a half decades ago and with which this column commences. The law serves the rich and the poor with an equal hand. Such an effort by this petitioner may have thus been better rewarded with a solid result of jurisprudential principle rather than by the expedient device of an apology.
In any event, the role played by the Attorney General attracts particular attention. At one time, the Office had taken a principled stand to abstain from appearing for police officers alleged to have committed torture. While this position seems to have been cast to the proverbial winds in recent decades, it is adding insult to injury when the state law officer of the land actively intercedes to secure a settlement based on an apology by the abusive state officer. Is this the proper role of the Attorney General, one is compelled to ask?
The state law officer as the public guardian
Indeed, the converse should be the case the case. At the Bar, the state law officer is an officer of the public and a guardian of the public interest. Thus, he or she is vested with a special duty to assist the Court in reaching the correct decision after balancing the rights of the State and the public interest. That duty is not to secure the protection of an accused state officer by all means.
But it is Sri Lanka’s tragedy that along with the undermining of the two cardinal principles of the independence of the judiciary and an independent public service, the independent function of the Attorney General has also been greatly corroded. The scandalous behavior of past AttorneysGeneral and their affinities with the political establishment of the day became an open secret.
These are not matters that can be corrected with one (flawed) constitutional amendment such as the 19th Amendment or indeed with a wholly new Constitution as the case may be. Neither can much change result from occa- sional hysterics over the appointment of a particular Attorney General. These are superficial preoccupations, good only for the more frivolous minded. Instead, the national effort must be towards change of the institutional culture and fierce vigilance must be exhibited in that regard.
Public scrutiny of the Office
And there is a general trend in recent decades where the word of the Attorney General is given more than due judicial deference. This seems to be evidenced even in instances where habeas corpus applications have been filed in respect of a ‘disappeared’ person or allegations of torture made.
Public scrutiny of this Office must not be limited to a few corruption cases or the like. Rather, there must be attention drawn to prosecutorial policies and practices in a substantive manner. For example, has the prosecutorial policy of refraining from filing indictments under the AntiTorture (CAT) Act of 1994 changed to an active engagement? What is the number of recent indictments filed? What is the status of the cases prosecuted to the full?
And where its constitutional role is concerned, has it acted in accordance with the public interest? Certainly the instant case appears to indicate the contrary. Moreover, the mere promise by the police to withdraw the fabricated case which they had filed against the petitioner, inferentially in an attempt to intimidate him, surely does not address the harm done to the petitioner thereby. Who redresses that specific harm?
No change in the non-accountability culture
While frantic attention is diverted to transitional justice processes and other such esoterically glamorous stuff, the mundane details of ordinary non-accountability assessed against the common law of the land proceed unnoticed, in constitutional law or in criminal law as the case may be. In the end, nothing actually changes.
This is a prime example of that inglorious reality.