CJ vs. AG battle over language

Bhagwati insists on Independent Counsel and not State Counsel for Commission

Former Indian Chief Justice and Member of the United Nations Human Rights Committee, Justice P.N. Bhagwati was appointed as Chairman of the 11-member International Independent Group of Eminent Persons (IIGEP) that monitors the progress of the Presidential Commission of Inquiry (PCI). PCI is probing 17 cases of killings, including the slaying of 17 aid workers of the ACF and two red cross workers in Sri Lanka. The IIGEP is here on the invitation of President Mahinda Rajapaksa.  As Head of IIGEP, he issued two controversial statements last month that saw Attorney General C.R. De Silva issue a hard hitting letter to Justice Bhagwati. Bhabwati is yet to officially reply the letter. Mr. De Silva, in a hard-hitting interview with The Nation last week, further countered the claims made by the IIGEP statements. Justice Bhagwati in a telephone interview from India with The Nation newspaper said Mr. de Silva’s response was not befitting the office of Attorney General on account of the language used. Justice Bhagwati said he was not averse to dissent but insisted it must be couched in dignified language.  In this interview published in full, Justice Bhagwati stood his ground insisting that there should be independent Counsel to conduct the proceedings before the Commission of Inquiry instead of this role being played by officers of the Attorney General’s Department. Justice Bhagwati however maintained that he had utmost confidence in the Commission “headed by a Brother Judge” and agreed that one or more members of the IIGEP should be present when the inquiry will be held.

By Keith Noyahr
Q: Attorney General C.R. de Silva says you have misunderstood the role of the AG and his officers and that you have made unfounded and unwarranted allegations against himself and his officers. Your response, please.
I always welcome dissent. I welcome criticism. But, the language used is not proper and does not befit the office of Attorney General. If I am wrong, the Attorney General could very well point it out and I am willing to accept it. But it should be done in courteous language.

Q: The AG (on behalf of the Government) expressed his objections to the contents of the first and second public statements, claiming it would prejudice the ongoing and scheduled investigations. What is your response? Have you responded in writing?
That is his right to clarify matters. I am not against the contents but that has to be done in respectful language. I may not agree with his observations and he may not agree with mine. But, such correspondence has to be couched in decent language. I will be writing to the Attorney General and the President of Sri Lanka shortly.

Q: Mr. De Silva rejects as totally unfounded the objection raised by you that the AG’s department has been involved in investigations and hence it was undesirable to function as counsel at the commission. Do you maintain your original stance?
I still maintain that there should be independent Counsel to conduct the proceedings before the Commission of Inquiry instead of officers from the Attorney General’s Department. Independent lawyers should be free to decide what material should be placed before the commission of inquiry, and what is relevant or irrelevant and whether further investigations should be done to arrive at the truth. For this you need independent counsel who could of course seek the support of the Attorney General’s Department. Independent Counsel may be instructed by the AG’s officers.

This is not a prosecution based on a set of completed investigations, but a commission of inquiry to ascertain the truth. This is how in India and other parts of the world a commission of inquiry is held. I still maintain the objection to officers of the AG’s department playing the role of independent counsel in an inquiry of this nature. I believe there are senior counsel attached to the Commission who could do the job. Such counsel would be able to say what is required and if the investigations conducted so far are not proper, he could get the law enforcement officers to re-investigate certain aspects of the case. The Attorney General would handle the prosecution. It is not correct to have State Counsel, not even the Deputy Solicitor General nominated, to play the role of independent counsel for the inquiry. All 11 of us appointed as international eminent persons are of this view and we are very clear that independent counsel should conduct the inquiry. It is up to the people to judge as to whether we are right or wrong.

Q: The AG has also said it was unreasonable to allege that the commission has delayed commencement of investigations and inquiries and that little progress had been made when so much preliminary work had been done. Your response, please.
Well if it could be pointed out that the necessary preliminary work was done and there is justification of the five-month period that had lapsed, I would be too glad to accept that. I have utmost confidence in the commission that it would be held in a systematic way given that it is headed by one of my Brother Judges, a former judge of the Supreme Court.

Q: The AG has admitted that the absence of laws to protect victims of crime and witnesses is affecting the commission. What is your view?
There has to be a law for the protection of witnesses. In the absence of such a law, protection is weak and witnesses would not come forward to tell the truth in their evidence. Such laws for protection must be available.
Even now it is not too late to have such laws in place to conduct the inquiry properly.

Q: The AG maintains that when your lordship met with the President about a six weeks ago, the role of the AG on assisting the commission and the establishment of two panels of Counsel were explained. He says that you had not objected to officers of the AG’s department continuing to assist the commission. Why this volte face?
There was no opportunity to discuss the pros and cons of this issue fully during this meeting with the President of the country. But, in February, 2007 I wrote to the President citing an important principle of not only the independence of the commission, but also the appearance of independence. But, in the course of conversation, he did not seem to attach any importance to the point I was making. Therefore, I could not argue with the President of an Independent State. But, I did make my point in the letter.

Q: It is said that you were not present a single day and only three members were present on the inaugural day of sessions. Your response, please?
I admit I am not keeping a track of the proceedings everyday. And it is in a general way that I am following it. But, I am of the view that one or more of the members must be present when the inquiry is going on. They must be present throughout the proceedings.

Q: The AG says your assertions about questioning amounts to an insult to the commissioners. He has requested you to desist from making such inappropriate and incorrect comments as it adversely affects public confidence in the commission. Your response, please.
The Attorney General should desist from making such comments to a former Chief Justice and a member of the United Nations Human Rights Committee.

Q: He says the IIGEP statement was prepared in advance, and the second one was issued four days after the first (with nothing much happening in between) to coincide with an international forum. This, he says, suggests that IIGEP members were not acting in good faith. How do you respond to this charge?
The Attorney General should not stoop to make such remarks. Such remarks are unthinkable from the holder of the office of Attorney General for which I had had utmost respect. Whatever criticism that he chooses to level against the International Independent Group of Eminent Persons, he must ensure that it is couched in dignified language.