Editorial

One of the provisions in Resolution (60/L/1/Rev.1) passed without a vote at the UN Human Rights Council (UNHRC) last week in Geneva was to call for an Independent Public Prosecutor’s Office in Sri Lanka. The resolution “acknowledges with appreciation” the Government’s commitment to establish such an office—independent of the Attorney General.

The Government has, since assuming office, been at odds with the AG’s office, accusing it of protecting or procrastinating on prosecutions relating to corruption charges against former government politicians.

The AG’s Department has never been a squeaky-clean, non-political office, and don’t we know it? Once, the then Justice Minister, who is now languishing in the opposition pontificating on the rule of law, asked the then AG to send out an indictment even when two senior prosecutors said there was “no case” to file. The AG, who was kept acting AG at the time, obliged. The trial judge’s promotion was held up until he obliged with a conviction. Eventually, the Supreme Court flung the case out of Hulftsdorp. Such interferences there were, but by and large, over the long history of the department, it has been fair, impartial and independent, with many upright lawyers serving the cause of justice. And this, despite an overworked and underpaid staff causing a heavy exodus of trained personnel to the private Bar.

A public prosecutor has its own legacy in Sri Lanka. During the era of Justice Minister Felix Dias Bandaranaike, an office within the AG’s Department was created for almost exactly the same reason as is trotted out today: non-cooperation by the AG’s office—to the liking of the then government. Unfortunately, the handpicked prosecutors for this new office, highly respected men, got caught up in the politics of the day, accused of being the cat’s-paw for the minister when opposition members were indicted, and the next government wound up that unit. Are we going to see a rerun again?

Already, the Government stands accused of political interference in almost all the Independent Commissions—from the appointment of a director general of one of the commissions to the divesting of another commission’s powers to the police chief to the failed attempt to have a questionable candidate appointed to the RTI Commission and another to the Auditor General’s office. The Government has been forced to strenuously defend all these actions. Several senior Government spokesmen are, in fact, even justifying these appointments, arguing that the Government ought to appoint people loyal to them to these sensitive posts.

Coming in the backdrop of a statement by President A.K. Dissanayake himself that there exists a ‘Deep State’ working to undermine his government, it is reasonable to ask if an Independent Public Prosecutor’s Office is going to face the same fate of “independence” as the existing Independent Commissions.

Often, Western thinking that independence flows from the mere use of the word ‘independent’, or democracy flows from elections and elected representatives—like to sports bodies—is the way forward is flawed. Little do they know how politicians work in these parts of the world and how elections are conducted for sports bodies. There may be some doubt entertained in the Geneva resolution itself when it says it hopes the Sri Lanka Government will ensure this office will be “fully independent, effective and robust“.

Weaponising the AG’s Department with the introduction of the Public Prosecutor’s Office rather than fine-tuning any deficiencies of the department can be a risky option. The administrative, legal, and financial complexity of establishing new public offices and the bureaucratic processes and delays need to be factored in. Setting up and dismantling public offices is a serious matter.

A government also becomes easily tempted to push for vindictive and selective prosecutorial decisions. Revenge and retribution against political opponents by the ruling party could easily become the order of the day. Blurring the separation of powers provided as safeguards in the Constitution from authoritarian rule by taking the rule of law to a wholly new and potentially dangerous level through ‘Lawfare’ must surely be avoided.

Conundrum over provincial polls

Another issue in the Geneva resolution that keeps turning up like a bad penny is the demand to hold Provincial Council elections. This has been thrown into the potpourri of countries like Malawi, North Macedonia, Liechtenstein, Costa Rica and the like, asking the Sri Lankan Government why these elections are not being held.

These UNHRC resolutions on Sri Lanka have their origin way back when India was backing the separatist guerrillas in this country and got Argentina to be the sponsor as payback for Sri Lanka voting with the UK, even breaking ranks with the Non-Aligned Movement (NAM), at a UN vote condemning the UK for their violation of Argentine sovereignty over the Malvinas (Falklands) invasion. Today, it is this UK that is leading the charge against Sri Lanka at the UN for obvious diaspora vote-bank reasons.

India, on the other hand, which has been hot on Provincial Councils, which it fathered in Sri Lanka with the 13th Amendment, has suddenly gone cold on the subject, except to use it as a handle whenever it wants the Colombo Government to fall in line with its geopolitical agenda. Its lips were sealed when Resolution 60/L1/Rev. 1 was adopted last week.  Given India’s cosy relations with the incumbents in Colombo these days, they wouldn’t want to be seen as rocking the boat.

When Foreign Minister Vijitha Herath made a statement in Parliament on the Geneva resolution, only two Opposition MPs raised the question of provincial elections. Elections are a familiar refrain for those in opposition, and often when they are held, they lose and are back in opposition.

The Government could well be reluctant to test its popular strength through provincial elections, having fared badly in recent Cooperative Society voting. Its leaders are asking why have PC elections when the country has done okay without them all these years. The official version, however, is that elections will be held after a delimitation commission completes its work.

Foreign Minister Herath himself, answering the questions, said elections to PCs will be held next year. Whether the Government is afraid of elections or not, the bigger issue is whether the PC system as we know it is beneficial for the country or not, whether it makes for greater efficiency in administration or not, whether the unit of devolved power is correct or not, and whether devolution by itself needs to be revisited in its entirety or not.