AHRC-FST-022-2011
April 1, 2011
A legal submission by the Attorney for the aggrieved party in the Kathri Arrachige case forwarded by the Asian Human Rights Commission
SRI LANKA: Protest against Attorney General's decision to terminate proceedings in Kathri Arrachige case
We reproduce below the written submission made on behalf of the aggrieved party by their attorney to the high court of Colombo in Kathri Arracchi Case
Written Submissions of the Aggrieved Party on the issue of Per Incuriam
1. Introduction:
It is submitted that, as more fully elaborated below, an examination of the steps taken by the Hon Attorney General, leading to terminate proceedings in this case (while amending some charges) amounts to a purported exercise of the Attorney General’s power to nolle prosequi, in the guise of exercising powers under 194(1) of the Criminal Procedure Code. The Learned President Counsel for the accused submitted in Court that amendments and terminations of proceedings are common in criminal courts and there is no unusual nature in this case. Having regard to the facts of this case, we respectfully disagree. If his argument is taken to a logical conclusion, an indictment containing multiple charges, such as murder, rape and grievous hurt, can be amended to a simple hurt, while permitting the AG to withdraw charge of murder and rape. This, we submit, is a strange exercise of AG’s powers!
We respectfully submit that there is a strong public law element in criminal law. In terms of the Constitution, the people are vested with sovereignty and the people’s sovereignty is exercised through Courts (vide: Article 3s and 4(d) of the Constitution.) As recognized by the Supreme Court in Udatalavinna case (more fully referred to para 3.4(b) below), the courts are also accountable to public. It goes without saying that the Hon. Attorney General is too responsible to the public for his/her actions. In public law, the absence of arbitrary power is the first essential of the Rule of law, which governs all state organs. (Perera vs. Ranatunga (1993) 1 SLR 39 at pg. 53). The respect for the Rule of Law requires the observance of minimum standards of openness, fairness and responsibility in administration. (Jayawardana vs. Wijeyathilaka (2001) 1 SLR 126 at page 143. It is well recognized in law that all public powers are exercised by the holders of such power in trust for the public, (Premachandra vs. Jayawickrama (1993) 2 SLR 90 and not for their own benefit. This is applicable to all public institutions, including the Department of Attorney General. For the submissions made below, we respectfully urge Your Honor to re-examine the proceedings and orders made in this case and in particularly the decision of the Hon. Attorney General to terminate the proceedings.
2. Background of the Trial
2.1 The Indictment
The aforesaid accused have been indicted by the Attorney General under the following Counts in the High Court of Panadura.
1. That on or about 24th August 1996 you being members of unlawful assembly, whose common object was to cause hurt on Kathriarachchige Don Karunarathna at Nampamunuwa, Piliyandala together with, (others unknown to the prosecution) by using pistols in the course of commission of the offence commited an offence punishable under section 44(b) of the Fire Arms Ordinance amended by the Act No 22 of 1996 read with section 146 of the Penal Code.
2. At the said time and said place and in the same transaction, one or more of the members of the said unlawful assembly caused the death of Devage alias Kathriarachchige Don Chandrarathna and the said death was caused in the prosecution of the said common object or with the knowledge that such offence was likely to be committed in the prosecution of the said object, you being members of the said unlawful assembly at the time of the commission of the offence committed the offence of murder punishable under section 296 of the Penal Code read with section 146 of the Penal Code.
3. At the said time and in the same transaction you together with several persons unknown to the prosecution and with a person named Raju whose whereabouts are unknown to the prosecution by causing the death of Devage alias Kathriarachchige Don Chandrarathna committed the offence of murder punishable under section 296 of the Penal code read with section 32 of the Penal Code.
2.2 The Trial before the High Court Judge of Panadura
The trail commenced upon the aforesaid indictment before the Honourable High Court Judge Mr. Samith Silva but it was aborted since the High Court judge was transferred. Thereafter a fresh trail commenced before the Honourable High Court Judge Mrs. Rohini Walgama. However the said trial was also aborted since the High Court Judge decline to hear the matter on personal reasons.
Thereafter Mr. Sarath de Abrew the High Court Judge was appointed to hear the case but it didn't proceed since the Hounarable High Court Judge was promoted to the Court of Appeal. Thereafter the accused opted for a jury and the said trial commenced before the Honourable High Court Judge Ms. Malini Gunarathna. The said trial proceeded upto submissions stage. However the said trial was also aborted due to dissolution of the jury since the jury had been threatened.
2.3 The Trial before the High Court Judge of Colombo
After the aforesaid trial was aborted the said case was transferred to Colombo and the accused opted a jury and trail commenced. The said jury was also threatened and the jury was discharged and the case was aborted. Thereafter a fresh trial started and the accused opted for a trial before the Judge. Thereafter the case was called on 1st February 2011 before Your Honour’s Court and on the said day the Honourable Attorney General made an application to amend the indictment by withdrawing the Firearms Ordinance in count 1 against 1st, 2nd, 3rd and 5th accused and also informed Court that the Attorney General would not be proceeding against 1st, 2nd, 3rd and 5th accused in respect of Counts 2 and 3. The case against 4th accused, who is absconding to proceed on the original charges with the penalty under the Firearms Ordinance remaining. State Counsel volunteered to furnish an amended indictment, but Court proceeded to take steps immediately with the oral amendments only.
The Court recorded that it was amending the indictment with regard to 1st, 2nd, 3rd and 5th accused charges against 4th accused to remain the same. Court read out the amended indictment to 1st, 2nd, 3rd and 5th accused and convicted them on their pleas and thereafter called upon the defence for mitigation.
3. Submissions
3.1 Entire procedure was illegal & Per Incuriam
It is respectfully submitted that the entire procedure that was adopted by the State Counsel and the Court as outlined above was illegal and without due reference to the law.
There is no indication as to the provision, under which the State Counsel informed the Court that the Attorney General would not proceed against 1st, 2nd, 3rd and 5th accused on Counts 3 and 4 on the indictment;
It is respectfully submitted that there is no provision in the Code of Criminal Procedure Act that permits or recognizes such a course of action;
It is respectfully submitted that there is no indication as to the provision under which the Court has acted in response to the information given by the State Counsel regarding the termination of proceedings against 1st, 2nd, 3rd and 5th accused on Counts 2 and 3 of the indictment;
It is respectfully submitted that the Court has not made any response to the State Counsel’s information to the Court that the Attorney General was not proceeding against 1st, 2nd, 3rd and 5th accused on Counts 2 and 3;
It is respectfully submitted that there is no provision under the Code for the Court to accommodate the termination of proceedings against the said accused: if the State intended 'olle prosequi' then it must come under the hand of the Attorney General in terms of section 401 of the Code. A State Counsel cannot enter 'nolle prosequi'.
It is respectfully submitted that if the State Counsel intended to withdraw the counts then he must first get the permission of Court in terms of section 194(3) of the Code: no permission was sought and no permission was given as far as is revealed by the record;
It is respectfully submitted that the proceedings of the 1st of February 2011 are not known to the law and orders made in the course of those proceedings are per incuriam, namely,
(a) Taking in pleas of the said accused on Count 1 as amended and convicting them thereupon apparently acting on the information given by the State Counsel that the Attorney General was not proceeding against the said accused on Counts 2 and 3;
(b) Apparent termination of proceeding by Court against 1st, 2nd, 3rd and 5th accused on Counts 2 and 3;
(c) Amending the indictment in Count 1 by removing the reference to the Firearms Ordinance in respect of 1st, 2nd, 3rd and 5th accused whilst maintaining the Firearms charge in Count 1 only as against 4th accused, the charge being unlawful assembly alone with 1st, 2nd, 3rd and 5th accused;
3.2 The Basis for Terminating proceeding Untenable:
It is respectfully submitted that considering the submissions made by the state and by the counsels of accused on 1st February 2011, the reasons for the withdrawal of the aforesaid charges are;
(a) The failure to complete trial over a long period of time has caused prejudiced to the aggrieved party and to the accused and there is an expectation to see a finality of the case;
(b) That there is no sufficient evidence to prove 2nd and 3rd Counts in respect of 1st, 2nd, 3rd and 5th Accused.
It is respectfully submitted that the decision of the Attorney General to withdraw charges on the aforesaid basis is manifestly illegal, arbitrary, unreasonable and lack of transparency, since there is no material placed before the court to substantiate the aforesaid reasons. Especially the 1st ground relied upon by the Attorney General is frivolous, baseless and it is against all norms of law in this country.
Even though the Attorney General considers the prejudice caused to the aggrieved party due to the delay, the aggrieved party has never made complained to the Attorney General about the same.
It is respectfully submitted that the aforesaid second basis relied upon by the Attorney General is also frivolous, baseless, unlawful and illegal and it is tainted for the following reasons;
(a) The only trial held before Your Honour’s Court was the jury trial which was aborted and in the said jury trial even the evidence of the 1st witness was not concluded;
(b) It had been submitted to the court on 26th July 2007 (vide proceeding recorded at 11.10a.m.) by the state that the opinion of the senior prosecutor to this case Deputy Solicitor General Mr. Wasantha Navarathna Bandara was to appoint a Trial at Bar to hear this case.
(c) The Prosecution has never taken up this position during the pendency of the trial before the jury at Panadura High Court which matter almost came to end;
3.3 Illegality of AG’s Decision to Terminate Proceedings:
It is respectfully submitted that the aforesaid action of the Attorney General in terminating proceedings is manifestly illegal and it lacks transparency since the Attorney General has failed to submit any reason or provision, which comes within the framework of the law. It is respectfully submitted that the aforesaid reason given by the Attorney General at the time of making the submissions were absolutely frivolous and the said reasons deprived the rights of the aggrieved party. It is respectfully submitted that the discretion of the Attorney General was comprehensively discussed in Victor Ivon v. Sarath N. Silva, Attorney General and Another reported in 1998 1 Sri LR 340. In the said judgment their lordships judges of the Supreme Court held that;
"It is clear that the Attorney-General has a statutory discretion, which involves several aspects. He has to decide whether to give or refuse sanction; and whether to exclude a summary trial, and, in that event, whether to order non-summary proceedings or to file an indictment. The exercise of that discretion is neither legislative nor judicial action, but constitutes "executive or administrative action".
The important question in this case is whether the Attorney-General's discretion in regard to the institution of criminal proceedings is absolute, unfettered and unreviewable, in which event leave to proceed must be refused without further ado.
The question is not simply whether a decision to file an indictment can be reviewed; it is a larger question, whether a decision to grant sanction to prosecute, or to file an indictment, or the refusal to do so, can be reviewed. Whichever way that question is answered, it may have implications in regard to decisions by public officers to institute (or refrain from instituting), criminal proceedings"In the said judgment Their Lordships of the Supreme Court further held that the discretion of the Attorney General is not unfettered and is reviewable. Thus it is submitted that the AG should exercise his discretion with uniformity so as to ensure that it does not violate the fundamental rights of the people. Their Lordships Judges held as follows;
"Let me turn to another extreme example, where there is sufficient evidence of guilt. Suppose that during an election campaign rival politicians were persistently defaming each other, and that the Attorney-General consistently refused sanction despite adequate evidence of guilt - referring all the complainants to their remedies under the civil law and the election laws. I think that would be proper. Suppose, however, that he made exceptions in regard to all cases in which the alleged wrongdoer belonged to one particular political party. Could it be said that the accused in those cases cannot complain that the grant of sanction infringed Article 12 (2), simply because there was sufficient evidence against them to justify a prosecution? In other words, where a decision has to be taken whether or not to grant sanction to prosecute the members of one class of alleged offenders, similarly circumstanced in every respect, save political affiliation, could that decision turn solely on their political persuasion? It might conceivably be argued that alleged offenders against whom there is evidence can hardly be heard to complain that other offenders are not being prosecuted. But let me look at the problem from the point of view of those defamed. Could it possibly be said that complainants who belonged to that political party were not entitled to complain that the refusal of sanction to them was in violation of Article 12 (2), in a situation in which complainants from rival political parties were granted sanction? Such examples can be multiplied. If all persons complaining of criminal defamation by articles published in a rival newspaper were denied sanction despite ample evidence, but sanction was regularly granted for prosecutions against the "Ravaya" even on tenuous evidence, would there not be an infringement of Article 12 (1)?"
3.4 The Legality of the Orders made on 1st February 2011 on Termination of proceedings and the amendment to Count 1:
(a) It is submitted that in terms of the provisions set out in the section 194 of the Code of Criminal Procedure Act No 15 of 1979, the Attorney General is vested with powers to discontinue the prosecution or to withdraw charges with permission of Court. If the Attorney General’s application was to withdraw the charges mentioned, the section 194(3) reads as follows;
"The prosecuting counsel may with the consent of the presiding judge at any stage of the trial before the return of the verdict withdraw the indictment or any charge therein and thereupon all proceedings on such indictment or charge as the case may be against the accused shall be stayed and he shall be discharged of and from the same"
(b) It is respectfully submitted that there is no order give by Your Honour’s Court, with reasons, with regard to the application for withdrawal of charges. It is respectfully submitted that according to the proceedings dated 1st February 2011, it appears that no order was made in that regard, except for the amendment to Count 1. It is respectfully submitted that the Supreme Court in a five bench decision, namely Honourable Chief Justice Asoka De Silva, Justice P.A. Ratnayake, Justice Nimal Gamini Amarathunga, Justice Jagath Balapatabandi and Justice Chandra Ekanayake in SC Appeal TAB 01/07 SCM24-7-2009 (Udathalawinna case) have broadly discussed the accountability and the responsibility of judges towards the general public in the judicial process. Their Lordships in the said Judgment emphasized the need to give reasons and held that;
"Reasons for the judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they rendered. The courts frequently say that justice must not only be done but must be seen to be done. Observers question as to how justice can be seem to be done no reasons are given by the judges for their actions. Accountability depends on the reasoning. But it is not certain as to the extent to which a reasonable based on a solid evidentiary record will nevertheless be reversed because the reasons for the decision are considered inadequate, confusing or poorly expressed.
There is a duty cast on a judge to give reasons for their decision, as their decisions are subject to review by superior courts. Within courts furnishing of reasons not only assist the Court of Appeal in scrutinizing the legality and the correctness of the order made by the lower court, but also the existence of the reason will tend to support the idea of justice and would enhance the public confidence in the judicial process"." This appears to be an echo of the saying –"justice must not only be done but must be seen to be done"( Mosses 1999 3SLR314) public accountability and need-to-know.
" So it would appear that inclusion of reasons in a judgment cater to two distinct situations: Public accountability and the need to know. An acceptable judgment must indicate the judge’s absorption of the narrative of events, his evaluation of the evidence with reasons thereon, his application of the law and the legal principles".
(c) It is respectfully submitted that the accountability of judicial process was also discussed in length in case ofMosses Vs State reported in 1999 3 Sri LR 401.
(d) It is respectfully submitted that Court is required to take into account that the evidence of the first eye witness has not yet been concluded and that there are number of more eye witnesses to follow: it is in incomprehensible as to how the Court could permit the Attorney General to discontinue proceedings in the face of these facts or to amend Count 1. The evidence led before the Court clearly implicates the accused and indeed speaks to the fact of the participation of all the accused and that the 5th accused had shouted ‘shoot’ and thereafter the shots were fired and murder was committed. There are more eye witnesses to follow. In these circumstances it is submitted that the action taken by Court to take and convict the said accused on their pleas for the first Count as amended and to abandon the Counts of murder against 1st, 2nd, 3rd and 5th accused was illegal, unwarranted and unjustified. It is submitted that the entire procedure adopted on the 1st February 2011 was per incuriam;
4. Conclusion
In view of the aforesaid circumstances, it is respectfully submitted that the aforesaid proceedings and the orders made by Your Lordships in relation to terminate proceedings and amend the Charge No.1 as aforesaid should be set aside and the trial must proceed on the original indictment against all the accused and it is so moved.
Attorney at Law for the
Aggrieved party
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
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