The Hon. G.G. Ponnambalam

¶ 01 Hon. Deputy Chairperson, I wish to take up the Government’s thinking of an Independent Prosecutor’s Office. In the North and East, several habeas corpus cases were filed in the Vavuniya High Court, inquiries were held through the Mullaitivu Magistrate, and the High Court held the Army responsible for enforced disappearances. The Attorney-General’s Department, appearing for the Army, has appealed and the matter is before the Court of Appeal. If the petitioners succeed, it again falls to the Attorney-General’s Department to prosecute those officials. Counsel who appear in these cases are of the view there is a major conflict of interest when the State’s primary lawyer is asked to go against the State. This raises questions about credibility.

¶ 02 If the Government creates an Independent Prosecutor’s Office, that would be welcome. But it must have sufficient resources and infrastructure; power to direct and supervise investigations; to direct the police and other investigative bodies; and to institute proceedings directly. Above all, it must be truly independent and avoid the conflict of interest that dogs the AG’s Department. I do not cast aspersions on the Department; it has tremendous talent. But it defends the State in the vast majority of cases and cannot then be expected to turn around and prosecute State officials without a credibility issue. In the North and East, particularly in habeas corpus cases, there is a credibility problem.

¶ 03 On mass graves: in Kokkuthoduvai (Sathosa building), in Mannar beyond the causeway, and recently in Chemmani, Jaffna, skeletal remains have been found. I personally visited Chemmani; at that time the police had taken no action and the Magistrate had not been informed. I requested our party member in the cemetery committee to complain, after which the Magistrate got involved. There is no clear protocol to handle mass graves. Funds are grossly inadequate. As things drag on, evidence can be destroyed or tampered with. In the Chemmani case, the accusation is that over 600 civilians were killed and buried, and that during President Chandrika Bandaranaike’s time, bodies may have been excavated and removed overnight. Without resources to secure sites and evidence, grave injustice is likely.

¶ 04 Given the nature of our system and the conflict involving Tamils versus the State, the UN High Commissioner for Human Rights (Prince Zeid) opined that an internal inquiry in Sri Lanka is not feasible due to systemic prejudice. At the very least, protect and record the evidence credibly until there is agreement on accountability with victims; I am not even asking you to investigate now, but to preserve the evidence properly.

¶ 05 Another conflict of interest arises in cases involving contested antiquity sites like Kurunthur Malai and Vedukkunaari Malai, and matters like the Thaiyiddy Temple. The Department of Archaeology, with police and military, obtains orders and yet construction proceeds in violation of court orders, allegedly with departmental sanction. When Magistrate T. Saravanaraja visited in response to violations of his orders, he was threatened; it was publicly said the Attorney-General himself called and effectively threatened him, leading him to flee the country. The AG’s Department appears for the military, police and departments; when sensitive clashes occur, the system collapses. This must be addressed.

¶ 06 Appointments to apex courts also raise concerns. In the Supreme Court, out of 17 judges, except four, the rest are from the AG’s Department; in the Court of Appeal, eight of 15 are from the AG’s Department. Their professional tilt is pro-State. Such dominance questions the credibility of the courts’ structure and is prejudicial to career judges who toil 20 years, get transferred across the country, and often reach the Court of Appeal only for a year or two. Tamil career judges like Justice C. V. Vigneswaran were among the last to reach the Supreme Court via the career path. It is unfair. My advice: revert to earlier practice—apart from the AG and Solicitor General, do not consider direct apex court appointments from the Department; allow others to rise through the High Court.

¶ 07 Criminal justice in the North and East is fundamental due to mass atrocities and the need for justice and accountability. Your Government speaks of an internal mechanism but has not said whether genocide, war crimes and crimes against humanity will be brought into domestic law. Without Rome Statute crimes in our law, an internal mechanism is a non-starter. The Government has repeatedly said, including the President, that not one case will go to court—there is no will. An “internal mechanism” under such a stance would merely avoid criminal justice: a cover-up, like past governments. That makes no difference to the Tamils.