Home News English The Attorney General cannot withdraw indictments at any time he wants…

The Attorney General cannot withdraw indictments at any time he wants…

by Shyama Basnayake

As lawyers of the National People’s Power, we have made the public aware, whenever the rule of law is threatened. At the moment, a special process is taking place that affects the rule of law and the independence of the judiciary. Every week or two, the Rajapaksa family or a close associate who is blessed by that family is acquitted and released. The Attorney General’s withdrawal of such indictments should be discussed in the country. The Attorney General withdrew several indictments including the cases of Basil Rajapaksa, Johnston Fernando and the Minister of Agriculture. What is this process? Is the Attorney General’s Department allowed to do this?

Attorney-at-Law Sunil Watagala

There are several institutions where the public can complain about a crime. Complaints can be made to the police, the CID, and the Bribery Commission. If the complaints made to these places are to be continued by an indictment and the investigating officers of the respective institutions will submit a summary report to the Attorney General’s Department. A junior officer of this department uses it and sends a report to a higher official. If further details are required, the investigating officers can be called in to rectify the shortcomings. The senior investigating officer can further discuss the indictment with higher officials. Further, deficiencies will be addressed and the file is sent to the Head of the Crime Division of the Attorney General’s Department. The Head of the Criminal Procedure Division, the Senior Investigating Officer and the Attorney General will discuss further issues in the indictment. If there is any problem, the lower officials are called and faults are corrected.

The indictment will be sent to the High Court through a discussion between them after filing a summary report, referring to a junior officer and a supervising officer in the Attorney General’s Department, and then handing it over to the Attorney General. The relevant charges are read out in the High Court first. If there are any problems before reading the indictments filed in the High Court, the judge will send them back to the Attorney General’s Department. In such a case the investigating officers will make the relevant corrections again. The indictment is then presented in the High Court and the question is whether he is guilty or not. If such a case is suddenly withdrawn from the Attorney General’s Department, there must be a reason for it. How much public money has been spent on this?

If the indictment created in this manner is withdrawn with a single stroke of the pen, there is a problem. We responsibly say that the Attorney General cannot withdraw indictments at any time. It can not be withdrawn without a special reason. When the present government came to power it presented the “Vistas of Prosperity” manifesto. This manifesto states that the law is for social fairness. It states, “The legal system in a country is the foundation of a civilised society and it should operate to ensure the well-being of its people. The concept of rule of law aims to build a civilised society. As such, a democratic government should never interfere with the rule of law. Our government shall always be dedicated to protecting the rule of law and shall not allow anyone to challenge it.”

Also, on page 71 of this manifesto, “ Only one set of laws should apply to the entire country and the ruler as well as all citizens should abide by the rule of law. All should be equal before the law and as long as they abide by the rule of law, citizens need not be afraid of law enforcement agencies or law enforcement officers. An environment will be created where law enforcement agencies and law enforcement officers shall also be subjected to the rule of law.” This is what has been stated. They have told us very clearly. But now the policy statement is being set aside and is going the other way. He also brought the Kekille Commission to free his obedient disciples. The report of this commission has acquitted a large number of cases of the Rajapaksa family, cabinet members and friends. Also can make a prediction on the next case to be released. The Kekille Commission report has recommended that the controversial Malwana property case be acquitted. The Commission’s recommendation is significant in the case of Thiru Kumar Nadesan as the plaintiff under case number 1968/2020. “Upul Kumara Ramawickrema should be prosecuted for making a false complaint under B8864 / 15 against the plaintiff and Mr Basil Rajapaksa, disciplinary action should be taken against the police officers Gunawardena and Ranasinghe, the case baring number 26/2017 of the Gampaha High Court should be withdrawn and the accused should be acquitted and released” was stated.

If the Attorney General’s Department acts in this manner, a significant problem would be created. There is no basis for Withdrawals. The speciality is that the indictments in these withdrawal cases have been signed by the then Chief Justice who is now the Attorney General. There is a big problem here. There are narrow personal political motives behind these withdrawals. Even if these cases are withdrawn, the cases of the common people will not be withdrawn. The Attorney General’s Department is withdrawing cases of politicians connected to the government in a hurry. The President and the Attorney General are directly responsible for withdrawing these cases. When the new Attorney General was appointed we thought the law would be enforced properly. But now criminals, the robbers who stole public money are coming out of court saying “Tata bye” in the mid-daytime. Attorney General, We are very disappointed.

We see how the gentlemen who got voted to uphold the rule of law by presenting policy statements are acting now. In the same manner, the abrupt conversion to organic fertilizer has become a real mess, the proceedings in the Attorney General’s Department will become a total mess. We use to like the current Attorney General. But we are very disappointed now. We invite the people of the country to join the legal team of the National People’s Power against this situation. We will not give up this fight until the rule of law is re-established. We will keep moving forward while educating the people.

All governments which change every five years have been withdrawing indictments of thieves…

We see that the Hon. Attorney General is being responsible and accountable not to the people of Sri Lanka but the government. Filing indictments is not the same as filing charges in an ordinary magistrate’s court. Indictments have more weight even in the literal sense of the word. It is clear that the seriousness of the offence and the process leading up to it is more serious than filing a case in a lower court. The charges filed in this manner involve a breach of criminal trust in the Penal Code. The legal principles of the allegations in the Penal Code on which these charges were filed by the then-Attorney General do not change when a new Attorney General is appointed under a new government. Was how the Attorney General and the relevant panel of lawyers acted at the time of filing the indictment wrong? Was the investigation erroneous? Have they committed an offence? The fact that the accused who are now being released were remanded further aggravates the situation. Therefore, there is no explanation for the withdrawal of the indictment.

Attorney-at-Law Akalanka Ukwatta

This shows that indictments filed by one government will be withdrawn by the next. Will the indictments now being filed be withdrawn by the next government? This suggests that the rule of law is in a state of disarray. It is a serious matter for people to lose faith in the rule of law. What to do if a situation arises where the judiciary will be demanded that the indictments of the general public should also be withdrawn? Have the indictments of non-politicians been withdrawn? Some allegations have been made even after investigations by presidential commissions. The Presidential Commission appoints persons with special expertise in the relevant subjects. According to their observations, the Attorney General will file indictments. A group of three High Court judges are appointed to hear certain indictments. Even such charge sheets have been withdrawn. In this sense, there is something wrong somewhere. When one is right, the other must be wrong. Isn’t it required to find where the fault is with the withdrawal of the indictment? Does the definition of law change for politicians?

Withdrawing indictments – which were done wasting time and money – in this manner, will erode the public confidence in the law. There is anarchy in such a place. The day people lose faith in the law, the loud-mouthed politicians will not have any say. Society should have the accountability of responsible officials. But after the 20th Amendment, they only think about securing their next promotion. This is where accountability is lost. With the law remaining unchanged, indictments cannot be withdrawn in this manner. In addition to the mistakes made by ordinary people, neglecting the duties that professionals are supposed to do is a very serious mistake. This situation is more serious than the accusations levelled by the indictment. It is also wrong to file an indictment without evidence under duress. Withdrawing indictments with evidence is extremely wrong. There is a separate discussion on financial crimes in particular. If the law is broken in this manner during the change of government a serious situation would arise. If a case filed by one Attorney General alleging indictment is withdrawn under another Attorney General, the reasons for it must be presented. It is extremely serious to use intelligence to create things that are not within the legal framework and also to destroy things that are within the legal framework.

It is better to include a clause that no law applies to the rulers in power…

The main issue today is the withdrawal of a number of indictments pending in various High Courts. There is a general opinion in our country that the legal network does not work against certain individuals. These are serious crimes. There are occasions when the Attorney General appoints a Senior Bar Council to re-examine a relevant investigation file. They analyze all relevant information and align all information, instructions and data to ensure there aren’t any discrepancies. Only then will an indictment be prepared or not. Such investigations are usually conducted under the direct supervision of the Attorney General. The vast majority of the cases we are talking about today are those that have been investigated in such a process. People do not know the basis on which such an indictment is withdrawn. However, it is a serious situation that an institution that claims to protect the fundamental rights of the people has not been given an explanation in this regard. They have both responsibility and accountability for the people. If the people do not see the responsibility and accountability in a decision taken by the Attorney General, there is a serious problem there.

Attorney-at-Law Upul Kumarapperuma

Relevant information regarding criminal cases in Sri Lanka is given in the Criminal Procedure Code No. 15 of 1979. This Code contains all the provisions relating to the early filing of a case in a Magistrate Court or a High Court. The Attorney General has the power to withdraw indictments with the concurrence of the High Court Judge. There is also the possibility of withdrawing an accusation. But it needs to be clarified on what reasons this discretion is being exercised. Discretionary power cannot be exercised arbitrarily or illegally. What is the next step for victims of unreasonable withdrawal after a complaint regarding harassment of citizens of the country has become an indictment after a lengthy process? Such is the situation concerning the release of Karannagoda. He could be a former Navy Commander. But who can explain the aggrieved party about this situation? If the people of the country lose faith in the judiciary and the law enforcement agencies, the whole society will suffer a great collapse. People will think, ‘It is useless to go to court.’

There are several facets to a reasonable view of a matter. The judiciary has the power to rule on justice. But what happens if people mistrust this system? There is no point in spending a lot of money and maintaining systems that break down. If there is any reason for the withdrawal of indictments, the public has a right to know where the fault is. There have been some cases in which the Witnesses withdrew because of poor memory. Such things can be accepted. In such a case, the Witnesses may be changed. However, such incidents cannot be accepted after the change of governments without any mention of any shortcomings in the investigations. The change of government does not change the investigative record of the indictment or any other evidence. Phone numbers and other data cannot be changed. In short, the facts stated in the charge sheet will not change with the change of government. If so, when political power changes, crime cannot be a crime.

Looking at all this, we are also required to say something very responsibly. As the people of this country, we must unite to bring a new amendment to the Penal Code, the Public Property Act or any other law. “Sri Lankan criminal law or any other law does not apply to politicians in power” – must be applied. The clauses in the apartheid constitution of South Africa amazed us. They were very revolting. But that was the law of the land at that time. A law like the one in South Africa should be passed stating that criminal law does not apply to politicians in this country. Instead, investigations that waste public money which even involves trips abroad should be stopped. If the Attorney General’s Department, which had filed its own case, says next time that the indictment will be withdrawn, there is no need to file such a case in the first place. If there is a clause that no case will be filed against the politicians of our country, we too can be free of this. They too can live in freedom. We have to go for such a discussion. Or the rule of law should be established in a proper manner by spending national wealth. Or we must stop wasting public money.

Answering questions raised by journalists…

There have been cases filed by the Commission to Investigate Bribery and Corruption and the Attorney General’s Department in recent times. Out of these two, the Bribery Commission dropped the cases due to technical issues. The Commission withdrew stating that the relevant cases had not been filed with the signatures of all three Commissioners. But there is a possibility of re-assigning those cases as well. There is also a possibility of re-assigning cases withdrawn by the Attorney General’s Department. The life of those cases does not end on the issue of withdrawal. The public is waiting to see when the cases withdrawn by the Bribery Commission will be re-filed. The same is true of the Attorney General’s Department.

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