CJ vs. AG battle over
Bhagwati insists on
Independent Counsel and not State Counsel for Commission
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.
A: 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?
A: 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?
A: 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.
A: 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?
A: 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?
A: 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
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?
A: 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
A: 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?
A: 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.