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The Attorney General answered questions put to him by this writer when he met the press regarding what he called the 'distortion of facts' in an article in a Sunday newspaper. In the latter part of this dialogue (see from question number 16, this interview ) he answered questions dealing with the fundamental issues of cases where a suspect is ones relative , and issues of bias in the Attorney General's Department.
Prior to that, he (and other officials of the AG's Department) spoke of the article in question which relates to Duputy Solicitor General Rienzie Arseculeratne, being supervising officer of a file in the AG's Department which dealt with a criminal fraud running into 16 million in the Edna chocolate factory, Mawanella. Mr. Arseculeratne is the brother-in-law of one of the suspects in this case, one Rexie Peiris. The file was opened in 1994, but the case has not come to court.
The AG maintained that there is no impropriety in Mr. Arseculeratne's connection with matters pertaining to the file. The AG explained his point of view and then proceeded to answer questions put to him by this writer.
A.G. It is only on the basis of this one file that all these allegations are made. It relates to an alleged fraud that took place at the Edna chocolate factory at Uthuwankanda, Mawanella during April 1991 to February 1992. The management of the factory at Mawanella made a complaint to the CID and an investigation commenced.
There is a misconception about how things are dealt with in this department. In the criminal side, areas of work are designated into divisions. Since a large volume of work comes from the CID, we have allocated one division for it. That is known by designation CR 1. In respect of each division there is a supervising officer who is a senior State Counsel or a Deupty Solicitor General. Files from the CID are received and allocated to a single allocating officer. At the time he was Duputy Solicitor General Nihal Jayasinghe. He allocates the file to a State Counsel. He notes who the current supervising officer is; supervising officers are rotated from time to time. During the period 30 July 1993 upto October 1995 Mr. Arsecule-ratne was supervising officer of CR 1. This relates to all files coming from the CID. This particular file was received in March 1994 at the time Mr. Arseculeratne was generally the supervising officer of CR 1. Mr. Jayasinghe allocated the file to a supervising officer by the name of Rajendra Prasad on 21 March 1994. The file went to Mr. Prasad through Mr. Arse-culeratne who was senior State Counsel supervising the file subject.
The article makes a serious mistake in saying that the senior State Counsel is expected to study the file at that stage. It is not so. He merely notes that a file has gone to the State Counsel, by placing his initial on the file. That is all Mr. Arseculeratne has done in this case. This file is available for your perusal. He has received it on March 21, placed his initial and sent it down to the State Counsel handling the matter (on the same day). It is seen that Mr. Arseculeratne got not only this file but also five other files and all five files have gone at the same time to different State Counsels, handling each matter. The delivery books are available. Work will get held up if the supervising officer studies the files at this time. He is expected to send it to the State Counsel who files his report to the supervising officer by way of procedure.
That takes a fair length of time, depending on the matter.
Q1: Kindly clarify the date on which the initial was first made.
AG: March 21, 1994.
Q2: Are there no other initials after that by Mr. Arseculeratne on the same file.
AG: I am going to explain that. State Counsel Mr. Prasad who was allocated this file could not complete the action because he has had a series of interviews with the CID where he wanted clarification.
He has had problems also because the officer in the CID had been transferred out.
Meanwhile State Counsel Mr. Prasad was transferred to the civil side, a general transfer. On 5, January 1995 all Mr. Prasad files were reallocated. It went to Mr. Jayasinghe for reallocation.
Q3: At such time the file was transferred to Mr. Arseculeratne's supervision he would have been aware of the case (This question asked by another correspondent)
AG: Of course, of course. That he (suspect) was his brother-in-law. Of course he was aware.
Then the file has gone to Mr. Jayasinghe who allocated it to Mr. Kodagoda State Counsel. Once again the file has come to Mr. Arseculeratne who again placed his initial and sent it to Mr. Kodagoda. The file comes again to Mr. Arseculeratne on 12. 1. 95 and goes to Mr. Kodagoda (who would have been prosecuting somewhere else) on 17. 1. 95. Mr. Koda-goda then studied the file and made a note that a senior officer of Edna confectioneries being the complainant had spoken to him prior to a complaint being made and that in view of that discussion and particulars that he knows of the suspect which are not disclosed in the file, he does not wish to handle the file. He has had specific discussions with the complainant party prior to the complaint being made to the police (Long before it came to the police). Because of that he felt he should not handle the file. He felt there was a conflict of interests there as he had already advised one party.
Q4: Is that the real reason Mr. Kodagoda asked to be relieved of the file.
Kodagoda: Yes, certainly. This kind of thing happens. When the complainant party discovers the offence, they like to find out the most suitable course of action. Here, they originally felt it was best to complain to the area police. But since we know that the CID is most equipped to handle this kind of thing, I advised that gentleman to get the CID to move on this case.
The complainant made no mention of the relationship the suspect is said to have had with Mr. Arseculeratne. The very first time I got to know anything about that relationship was only a few days ago.
Q5: What is material is not what you knew about the complainant but what you knew about the suspect.
Kodagoda: Of course.
Q6: You say in your minutes (in the file) that you did know something about the suspect which makes it difficult for you to continue with the case. So it is what you knew about the suspect that stopped you from continuing. What is it that you knew about the suspect that stopped you from continuing with this case.
Kodagoda: I felt that it is not appropriate for me to handle this matter because objectivity is lost no sooner an external communication of this nature is made.
Q7: But in your minutes you say that you knew something about the suspect (not the complainant whom you knew personally). What did you specifically know about the suspect which precluded you from continuing with this case.
Kodagoda: Yes, frankly what really happened was that the management people there apparently entertained this fear that this particular suspect had been in the habit of committing this kind of offence.
After that information that I received, I felt it would not be appropriate to go into the file and make recommendations. That information was not apparent on the face of the investigation notes.
Q8: So how does that information preclude you from continuing with the case.
Kodagoda: What was required of me was to make an objective analysis of what was in the IB extracts and make a recommendation whether we should prosecute or discharge. With that background would you expect me to handle the case.
I only knew about the suspect's relationship with Mr. Arseculeratne only when the query was made last week.
AG: May I clarify. Mr. Kodagoda has been told that this person has been in the habit of committing such offences. That is a serious prejudice that you have. If you look at the material with the mindset that the person habitually commits offences, then naturally you come to an unfavourable conclusion. You have to come to a conclusion objectively on the facts of the case.
Q9: What happened subsequently.
AG: The file then comes to Mr. Arseculeratne who initials it and sends it to another State Counsel.
Q10: So what does he say when he initials the file.
AG: Nothing, he merely initials and sends it.
Mr. Kodagoda: You wouldn't expect me to say in the minute that I have heard that the suspect is a habitual offender because that would have prejudiced the mind of subsequent officers.
AG: The file will indicate that on the 9th of October 1995 supervision changed. There is a serious error in this article which says that supervision continued with Mr. Arseculeratne. On the 9th of October 1995 supervision changed to Mr. C.R. De Silva.
Q11: Can we ask Mr. De Silva whether on that date supervision changed and he took over. Is that correct Mr. De Silva.
C.R. De Silva: From October 1995 I have been in charge of the CR 1 allocation. I have been supervising that allocation.
Q12: Is there a minute in the file to the effect that supervision was changed. Or are we to take your word for it that supervision changed.
AG: No no. don't take anybody's word for it. The allocations are changed by general circular, not by a minute on the file.
(At this stage, the Attorney General and Mr. Dayaratne, who is now handling the file as State Counsel, denied that they knew of the relationship of Mr. Arseculeratne to the suspect. The Attorney General said he only knew of that when it was brought to his notice last Thursday by the 'relevant editor' Lasantha Wickremetunge).
AG: Now, I shall deal with the burning questions. The first (alleged) fact is that Mr. Arseculeratne brought about a situation where the prime suspect being his brother-in-law, even his statement was not recorded by the CID. That Mr. Arseculeratne prevailed on the CID not to record the suspect's statement.
That is totally incorrect. The CID recorded a statement from his brother-in-law notwithstanding the fact that Mr. Arseculeratne was a senior State Counsel. In fact it is the longest statement recorded by the CID in which they have questioned him on four days with the statement running into 16 pages.
Q13: When was the first date the statement was recorded.
AG: 4th October 1992.
Q14: Well, at that time Mr. Arseculeratne had not been allocated the subject.
It is clear that when the statement was recorded by the CID, Mr. Arseculeratne had not been allocated the subject.
AG: The implication in this article is that Mr. Arseculeratne is a senior officer here and because of this, the suspect got this charmed existence.
Q15: Why was there no investigation after Mr. Arsecule-ratne took over as supervising officer.
AG: After that the CID stopped investigation. What I am saying is that the article goes on the basis that because Mr. Arsecule-ratne was a senior officer here, that the suspect was not even questioned. I'm saying that, that position is wrong. I will say, how come Mr. Black Coat who writes this? A statement has been recorded running into 16 pages. The second very serious error is that we have not even got copies of the statements recorded by the CID during this long period. The article says no information book extracts are in the file - how come Attorney General Silva? There are the information book extracts in the file, studied by each State Counsel.
The third serious inaccuracy is that Mr. Arseculeratne has been hogging or hugging the file. The writer has shown that it was with him for more than those brief days where he had initialed and sent it out. So this makes a very serious imputation against Mr. Arseculeratne. Fourth thing is that Mr. Arseculeratne and his brother-in-law are residing at the same address. It is clear from the CID statement that the brother-in-laws address is 52A, Anderson Road, Kalubowila. Mr. Arseculeratne has during this period resided at Grandpass. So they have never resided in the same place. These suppositions have been made on very serious errors. So he can't be tarred for what his brother-in-law does.
Q16: Since you have dealt with most of the matters concerned, can we come to a more fundamental issue. You are the supreme law officer of this country.
AG: No please. I don't claim any supremacy. I always entertain journalists.
Q17: Yes, but also, you were a judge of the Supreme Court. If I may ask something that is fundamentally connected to his whole issue, say if you as a judge of the Supreme Court had to hear a case in which your brother-in-law or a relative of yours was involved and you knew that this is the case, would you for even a day or two days continue with that case. Would you not divest yourself of any responsibility regarding that case for the simple reason that your credibility is at stake with the public.
Justice has not only to be done it has to appear to be done as well.
AG: The problem arose when I was President, Court of Appeal. I took the view that there were only twelve judges of the Court of Appeal, so if we look to relationships and so on there will be no judges to hear some of the cases. I took the position that as judges we must hear the case, but one reservation was made. If we feel that a decision is going to be made in favour of a relative or close friend, then at that stage for public perception you say "I decline, I do not want to hear the case." But if you are on the other hand going to take a decision against your relative or anyone, then that (case) should be dealt with (by that judge).
Q18: If that is your position, his (the relatives) chances of justice being done for him are minimised as well.
AG: This is a small country. If you go to look at friends, relatives, classmates, schoolmates and so on there is no end to the list. You look at things objectively. But there is a limit. The public will feel if I have given a decision in favour of my brother-in-law, however good that decision maybe, that the relative got the benefit of the relationship. So at that point you don't give decisions in favour of your brother-in-law.
Q19: So you say its correct to hear a case where your own brother-in-law is the suspect.
AG: Yes of course, subject to the position that you wont decide in favour of the person. For instance, the rule in the AG's Department is that you don't disclose relationships. If you disclose relationships, say to a junior officer, it becomes known for instance that there is Mr. Arseculeratne's brother-in-law is involved. It may be in the back of the junior officer's mind that this is so and so's relative. We don't want that to happen.
Q20: The person who is concerned can tell you that this is his brother-in-law and you are going to keep it confidential, isn't it?
AG: Confidence is a different thing. You have to put down things on paper.
We put everything down on paper. This is why Mr. Kodagoda has made detailed minutes of why he is not handling the files.
This is a small place. People know it is so and so....
Q21: But the countervailing fact is, what about the fundamental tenets of natural justice. How about bias, the fact that there should not be any appearance of injustice, that justice should not only be done it must seem to be done.
AG: No you have not understood. We are only presenting indictments here. Let the courts decide that.
Q22: You said, as a judge, you would not hesitate to take a case in which a relative was involved, as long as you were not going to take a decision in favour of a suspect who was a relative. In that case, don't you think you are doing an injustice by the relative, because you might then be inclined to be biased against him.
AG: If you are biased against a person then you would not be in this department. A biased person would not be in this department.
Q23: The public doesn't know that.
AG: That's why I'm telling you. You are the public
Q23: But, this is not any other department. This is the Attorney General's Department. Don't you think the highest standards should be maintained here, unlike in any other department.
AG: These are the highest standards. You should be able to look at things objectively. You can overlook a relative's case as long as you are not going to (very important), as long as you are not going to take a decision in his favour.
Q24: I heard that. Even so, even so - even provided that, do you think it is correct by highest standards? How can you be objective, how can you look at things objectively... and appear objective in the public eye.
Also, you said earlier that you are not dispensing justice here, that the courts should decide that. But the fact is that you can suppress the dispensation of justice by not presenting the facts to court. By suppressing facts. By the fact that there is bias in your department. By all this you can suppress the dispensation of justice in the very first instance, before it even gets to court (It might not even get to court).
AG: First you say suppression of facts, now you say bias. What is the connection.
Q25: Well, the connection is very simple. The suppression of facts arises in your department if there is bias in your department. The suppression arises out of the bias.
AG: Anything that is done in court is open for the public to see..... Public can see the evidence.
Q26: Excuse me, but the public did not see any of this. The public did not see anything in this file until it was exposed in the papers. So how can you say it was for the public to see.
AG: At that stage nobody is supposed to know because there is an investigation on.
Q27: Don't you think it is because there is no transparency (at this stage) that there should be no hint of impropriety at all.... (interruption by a person present). Don't you think it is a very cavalier attitude you are taking.
AG: It is not cavalier at all.
Q28: You said the modus operandi on which the department function is that relationships (of superior officers) are not divulged because that may create a bias in the minds of the junior officers. Aren't you casting aspersions on the ability of your junior officers to be unbiased?
AG: This is what happens unwittingly. When you are looking into the subject - this is very difficult to explain - this version relates to so and so's brother-in-law. That is the mental process which we try to avoid. That is essential in a place like this. Mr. Arseculeratne would not have taken a decision to discharge his brother-in-law.
We have a lot of checks and balances. In every case, it has to go through three officers.
Q29: Yes, but as far as a particular case is concerned, isn't correct that the buck stops at the senior most officer.
AG: No (smiles).
Q30: There are other discrepancies. When was the reallocation of this file from Mr. Arseculeratne to Mr. De Silva made.
AG: On the ninth of October 1995.
Q31: There is also an initial made on the 12th of November, by this initial which I presume is Mr. Arseculeratne's. This was made after the reallocation to Mr. De Silva. How can an initial be made by Arseculeratne after reallocation to De Silva. Is this Mr. Arseculeratne's initial.
Mr. Kodagoda: Yes.
Q32: How come he initials after supervision has passed to Mr. De Silva.
AG: (perusing file) No its 12th of January.
Q33: It is very clear. It is 12. 11. 95. Not 12. 1. 95. It is very clear on the face of it. 12. 11. 95 is very clear.
AG: In these things there can be a mistake.
Q34: This is a very clear document which says very clearly 12.1. Are we to presume it is correct or not.
AG: It is basically a document for us. Not for you all. We understand it correctly. Because these minutes, these are all gentlemen who make these minutes. They go one after the other. It says SC Kodagoda, DSG Arseculeratne. You don't put the year even.... you can say it is 97 then.
Q35: But the year is there.
AG: 1995. Oh yes, then obviously the next date is 10. 1. 95. Then obviously the next date is 12. 1. It can't be 12. 11. This should be 12.1.
Q36: But it is not. It is very clearly 12. 11.
AG: And I can support it. There is a delivery book.
Mr. Kodagoda: Thereafter it has come to me on the 17th of January.
AG: Next it goes to Kadagoda 17. 1. 95. So it can't be 12. 11 here.
Q37: But it is clearly 12.11.
AG: And there is a movement card to support it. All these documents to support it.
Q38: Mr. Arseculeratne whether you like it or not, all the allegations are against you. So, in order to clear the air, may I ask you whether you knew when this case (file) first came to you that the prime suspect was your brother-in-law.
Mr. Aseculeratne: There is no prime suspect. There are several suspects. I knew... He did not tell me about filing a case - all that he told me was that he had started a business on his own. Later on I came to know from an outsider that he has had a case; so I glanced through this. I knew that this could well be the case.
Q39: So you knew that this was your brother-in-law's case.
Mr. Arseculeratne: I knew.
Q40: You did not want to withdraw at that stage.
Mr. Arseculeratne: What for?
Q41: May I kindly then direct a question to Mr. Dayaratne.
AG: No, there is no time, I have to go for another meeting.
Additional Solicitor General K.C. Kamalasabesan, P.C. has been appointed by the Attorney General Sarath Silva to inquire how file CRI- 28-94 of the AG's Department leaked out to the press.
(1) The Attorney General states:
"You should be able to look at things objectively. You can supervise a relative's case as long as you are not going to take a decision in the relative's favour."
(2) About the standards for judges, the Attorney General states: "If a relative is a suspect, as judges we must hear the case. If we feel that a decision is going to be made in favour of a relative or a close friend, then at that stage for public perception you say "I decline. I do not want to hear the case." But if you are on the other hand going to take a decision against your relative or anyone, then that case should be dealt with by that judge.
However the book "Professional Ethics and Responsibilities of Lawyers" by Justice A.R.B. Amara-singhe says: (1) An attorney should not appear before a court in a matter where by reason of his relationship with the client or a party or a witness it would be difficult for the attorney to maintain his professional independence.
(2) A sense of detachment for the client's sake
The concept of independence requires an attorney to have a sense of detachment: In describing the Five Functions of the Lawyer, Chief Justice Vanderbilt said: 'First of all, a truly great lawyer is a wise counsellor to all manner of men in the varied crises of their lives when they most need disinterested advice.'
In Malaysia, a practitioner is precluded by Rule 4 (b) (ii) from accepting a brief on the ground of 'embarrassment' 'where there is some personal relationship between him and a party or witness in the proceedings.' In Victoria, Rule 4.4 (1) precluded a practitioner acting in a matter where by reason of any connection with the client it would be 'difficult to maintain professional independence!
(3) An attorney must have no connections or communications with the other side
Loyalty to one's client may be undermined if there is a connection with the other side. For example, an attorney must not act for the plaintiff against a defendant who is insured by a body of which the attorney is a director.
(4) (The) principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it.
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