Attorney General to act for the people
The law requires the Republic’s Attorney General to be absolutely independent in performing his statutory duties, which also includes the constitutional duty of examining Bills for the contravention of the requirements of the Constitution and expressing his views as the guardian that protects the sovereign rights of the people.
Unfortunately, recent experience shows that this is not happening in the Republic of Sri Lanka, despite Attorney General’s mandate has been clearly defined by Law, where it stipulates that ‘Attorney General represents and acts for the people of the Republic, who are supreme over all organs of the government‘ (Land Reforms Commission v Grand Central Ltd)
The most recent and patent let down of the people by the Attorney General is the passing of the Provincial Council Election Act No 17 of 2017 on 20th Sep 2017 by fraudulent means, absolutely disregarding the entrenched provisions set out in the Constitution and also with a scant respect to the authority of the Supreme Court that declared the approval of the people was required to postpone the provincial council elections.
In this backdrop the concerned citizens of the country are entitled to know as to why, the Attorney General acts in this inappropriate manner, which is an insult to the sovereignty of the people. The compelling reasons for the serious crime committed by the AG are identified as follows.
The flawed appointing process of judges to the Superior Court System
It is noted that there is no proper guidelines, in the Republican Constitution now in operation, regarding the process of appointing judges to the superior court system (Supreme Court and the Court of Appeal). The system currently in progress is that the Executive President sends a list of names as he pleased to the ten-member Constitutional Council for its approval, in which seven are MPs. This list always includes several names of those who serve in the Attorney General Department and thus it provides adequate leverage to the Executive President to abuse the process to ensure those who have protected the interests of the government to enter the superior court system.
This flawed practice is never followed in other leading democracies including the UK, where no person serving in the Crown Prosecution Service, is considered for any judicial appointment.
Good judges are sidelined
And this prevailing practice causes a tremendous damage to the independence of administration of justice in the Republic of Sri Lanka by effectively disregarding the judges who perform their judicial duties impartially. For instance, when President Kumaratunga was determined to install her favorite Sarath N Silva to the office of the Chief Justice, who was then a very junior judge (not even a judge in the Supreme Court), she first made him the Attorney General and paved the way for him to leapfrog to the office of the Chief Justice, bypassing all the other senior disserving judges in the Supreme Court. This includes one of the most respected judges of that time, justice Mark Fernando. The same fate was meted out to justice Sri Skandarajah, the, then President of the Court of Appeal who had been overlooked throughout by the Rajapaksa regime until his sudden demise. Justice Sri Skandarajah had the courage to declare that the removal of the Chief Justice Shirani Bandaranayake was patently illegal at a time when Rajapaksa was dictating terms on the judiciary. President Rajapaksa then appointed his own advisor Mohan Pieris, a former Attorney General to the office of the Chief Justice,.
Bar Association condemns the prevailing system
This wrong procedure of appointing judges to the superior court system has been severely criticized by the Bar Association in many occasions and on 11th Sep 2014 the, then President of the Bar Association Upul Jayasuriya, made his observations on improper judicial appointments as follows.
Upul Jayasuriya, hit out at the appointment of the new President of the Court of Appeal, (ASG Vijith Malalgoda) reiterating the need for judicial appointments to be made on the basis of merit and seniority and not on political considerations.
He said that there should be a set of transparent criteria and a due process for the appointment and promotion of Appellate Judges, which is not vested solely in the hands of one appointing authority and further quoted as follows.
“… What does the Executive want? A subdued Judiciary! A Judiciary that makes orders on the will and desires of the Executive? If that be the case, you don’t need a Judiciary. You can rule with Executive order …”
Dangling the carrot before the Attorney General
This undesirable system of appointing judges to the superior court system paves the way for the government to appoint the Attorney General as a judge or Chief Justice in the Supreme Court whilst the other officers serving at the AG’s Department too are considered for judicial appointments in the Supreme Court, Court of Appeal and High Court.
This practice undoubtedly affects the constitutional duty vested in the office of the Attorney General, which includes expressing of an independent opinion on the Bills presented in the Parliament (as described above) vested in him in terms of Article 77 of the Constitution and also the power vested in the office to enter nolle prosequai, (a formal notice of abandonment of prosecution) amongst others. The recent experience shows that the Attorney General has abused these powers, apparently at the instance of the orders and influence of the government.
From the foregoing it is clear had there been no such wrongful practice to appoint people from the Attorney General’s Department to the Judiciary, the incumbent Attorney General would not have deceived the Nation and permitted the Parliament to enact the Provincial Council Elections Act No 17 of 2017, effectively postponing the provincial council elections. The Speaker provides clear evidence in this regard by accepting that he had duly received the Attorney General’s opinion in favor to passing the law with a special majority (Hansard dated 20th Sep 2017).
This improper act had bypassed the Supreme Court ruling that forced the government to abandon the 20th Amendment to the Constitution after it was ruled that the Bill could not be made law without approval of the people obtained at a referendum.
The need for a drastic change in the appointing process
In this backdrop, there is no point of blaming the incumbent Attorney General, for his despicable act, permitting the government to enact laws undemocratically but only the corrupt system is to be found fault with. Therefore, the concerned citizens should understand without introducing a drastic change in appointing judges to the superior court system the people cannot expect their sovereign rights to be duly protected by the Attorney General. The Bar Association has endorsed this view as follows.
“… If this (transparent criteria and a due process for the appointment and promotion of Appellate Judges) is not implemented, public confidence in the independence and impartiality of the Judiciary would be irreparably impaired. We have seen in our midst that olden day Judges did not deliver judgments to win the hearts of the rulers, hoping for retirement benefits and perks.” – (President, Bar Association – 11 Sep 2014)
*Nagananda Kodituwakku, Public interest litigation activist