By Rusiripala Tennekoon –

The responsibility to establish a proper legal and evidential foundation before subjecting citizens to judicial proceedings

The administration of justice rests on a fundamental principle: no individual should be subjected to judicial proceedings without a proper legal foundation. The power to institute proceedings, whether civil or criminal, carries with it a corresponding responsibility to ensure that there are legitimate grounds for invoking the judicial process.

A recent development in the courts has brought this question into sharper public focus. The Court of Appeal’s consideration of whether a prima facie case of contempt has been established before proceeding to issue a rule against the persons concerned provides an important illustration of the need for preliminary judicial scrutiny.

This raises a wider question concerning the responsibility of those who initiate legal proceedings, particularly criminal prosecutions.

If the law requires a court to examine whether a legally sustainable cause of action exists before permitting certain civil proceedings to be instituted, and expressly requires preliminary scrutiny in particular criminal proceedings, should not the same fundamental principle of fairness guide the exercise of prosecutorial discretion?

The issue is not whether every allegation should result in prosecution or whether the prosecuting authority should establish guilt before a trial. It is whether there must be a sufficient, objectively justifiable foundation before a citizen is compelled to face the consequences of criminal litigation.

The principle of preliminary judicial scrutiny

The Civil Procedure Code provides an interesting illustration of this principle.

Section 40(d) requires a plaint to contain a plain and concise statement of the circumstances constituting each cause of action. Furthermore, Section 46(2)(d) empowers the court, in its discretion, to refuse to entertain a plaint before it is allowed to be filed if it does not disclose a cause of action.

The purpose is understandable. The judicial process should not be invoked merely because a person wishes to institute proceedings. There must be a legally recognisable basis for the claim.

The principle is also reflected in specific criminal procedures.

For example, Section 10(3) of the Contempt of a Court, Tribunal or Institution Act, No. 8 of 2024, requires the Court of Appeal, after examining the reference, motion or affidavit, to satisfy itself that a prima facie case of contempt has been established before issuing a rule against the person alleged to have committed contempt.

These provisions demonstrate the importance attached to preliminary scrutiny before a person is required to answer formal judicial proceedings.

It is important, however, to recognise that the legal tests applicable to civil causes of action, contempt proceedings and ordinary criminal prosecutions are not identical. The common principle is that the judicial process should be invoked on a proper legal foundation.

The responsibility of the prosecuting authority

The institution of criminal proceedings is an exercise of immense public power.

A person subjected to criminal proceedings may face restrictions on liberty, substantial legal expenses, reputational damage, professional difficulties and prolonged personal anxiety. These consequences can continue for years, even where the eventual outcome is an acquittal.

It is therefore imperative that the decision to prosecute should not be treated as a routine consequence of receiving a complaint or completing an investigation.

The prosecuting authority must independently examine the available material and satisfy itself that there are reasonable and objectively supportable grounds for instituting proceedings.

The existence of an allegation, suspicion or public demand for action cannot, by itself, justify prosecution.

This responsibility assumes particular importance where the decision to prosecute is vested in the Attorney General and the officers exercising authority under that office.

A landmark Supreme Court judgment: SC/FR/405/2018

One of the most significant judicial pronouncements directly addressing this responsibility is the Supreme Court judgment in:

Ganeshan Samson Roy v. M.M. Janaka Marasinghe and Others — SC/FR/405/2018, decided on 20 September 2023.

This judgment deserves particular attention because the Supreme Court went beyond making a general observation about the responsibility of prosecutors. It identified specific considerations that must guide the decision to institute criminal proceedings.

The Court recognised that the decision to prosecute is a serious step affecting suspects, victims, witnesses and the public at large, and that it must be undertaken with the utmost care.

In discussing the standards followed in common-law jurisdictions, the Court identified a two-stage approach:

Evidential sufficiency.

Public interest.

The Court then explained what should be examined when assessing whether the available evidence is sufficient to justify prosecution.

These considerations are of exceptional importance.

1. Admissibility of evidence

The prosecutor should consider whether the material proposed to be relied upon is legally admissible in court.

Evidence which cannot lawfully be presented or relied upon at trial cannot simply be treated as a sufficient foundation for an indictment.

2. Reliability of evidence

The reliability of the available material must be examined. The mere existence of a statement, document or allegation does not establish its reliability.

The circumstances in which evidence was obtained, its consistency and its supporting material must be considered.

3. Credibility of evidence

The credibility of the evidence and the persons providing it must also be assessed.

A prosecution should not proceed mechanically on the basis of untested allegations without examining whether the available material provides a credible foundation.

4. Consideration of the defence

One particularly important aspect of the Supreme Court’s observations is that the evidence of the defence and arguments which might be advanced on behalf of the accused must also be weighed.

This is an essential safeguard against one-sided decision-making.

A prosecutor’s duty is not to accept the investigating authority’s version without question. The available material must be examined objectively, including matters which may contradict the allegation or support the position of the proposed accused.

5. The realistic prospect of conviction

Having considered the available evidence, including the possible defence, the prosecutor should ask whether it is more likely than not that a court would convict the accused.

This is an assessment of the evidential prospects of the case at the prosecutorial decision-making stage. It is not a replacement for the criminal trial or the constitutional and legal requirement that guilt must ultimately be established beyond reasonable doubt.

6. Reasonable grounds to suspect the commission of the offence

The Attorney General should consider whether there are reasonable grounds to suspect that the person proposed to be indicted has committed the offence.

A suspicion unsupported by objectively reasonable material cannot be treated as an adequate basis for prosecution.

7. Whether further evidence can be obtained

The Court also recognised the importance of considering whether additional evidence can be obtained to provide a realistic prospect of conviction.

This is significant because it discourages premature indictments where material gaps in the investigation may still be capable of being addressed.

8. Seriousness, circumstances and public interest

Finally, the prosecuting authority should consider whether the seriousness or circumstances of the case justify an immediate decision to file an indictment and whether prosecution is in the public interest.

The public interest is an essential consideration, but it should not be confused with public pressure or the desire to demonstrate that action has been taken against a particular individual.

The interests of justice must remain paramount.

These are not merely academic considerations. They are practical safeguards intended to ensure that the decision to prosecute is made after a proper and objective assessment of the case.

The Supreme Court’s application of these principles

The significance of Ganeshan Samson Roy is further demonstrated by the manner in which the Supreme Court examined the circumstances of the particular case.

The Court considered the material available to the indicting State Counsel, including the statement of the petitioner and the transcript of a telephone conversation.

It found that the available material had not been objectively assessed before the indictment was sanctioned. The Court specifically criticised the failure of the indicting State Counsel and the supervising officer to discharge their responsibility to consider the facts objectively.

The Court therefore demonstrated that prosecutorial discretion, although vested in the Attorney General, is not immune from judicial scrutiny.

The judgment makes it clear that prosecutorial authority must be exercised within the bounds of legality, reasonableness and fairness.

Subsequent confirmation by the Supreme Court

The principles in Ganeshan Samson Roy were subsequently considered in Attorney General v. Sandresh Ravindra Karunanayake, SC/APPEAL/104/2024, decided on 3 June 2025.

The Supreme Court reaffirmed that the discretion of the Attorney General to institute prosecutions is not absolute or unfettered.

Where such discretion is exercised arbitrarily, capriciously, unlawfully, in bad faith or for an improper purpose, judicial intervention may be justified.

However, an important qualification must be recognised. Courts exercising judicial review should not ordinarily substitute their own assessment of disputed evidence for the assessment that properly belongs to the trial court.

This distinction protects both prosecutorial independence and the rights of citizens.

The objective is not to prevent legitimate prosecutions but to ensure that the power to prosecute is exercised responsibly and lawfully.

Reasonable and probable cause: The consequences of unjustified prosecution

Another relevant Supreme Court decision is Andra Hannadige Sarathchandra v. Ceylon Electricity Board and Others, SC/APPEAL/63/2023, decided on 3 April 2024.

In examining the law relating to malicious prosecution, the Supreme Court considered the requirement of reasonable and probable cause.

The judgment highlights the importance of both an honest belief and reasonable grounds supporting the decision to institute proceedings.

It also demonstrates that responsibility may extend beyond the initial decision to prosecute. Circumstances arising during the proceedings may require the prosecuting authority to reconsider whether continuing the prosecution remains justified.

This is an important aspect of prosecutorial responsibility. The duty to act fairly does not end when an indictment is filed.

A contemporary illustration: Preliminary scrutiny in contempt proceedings

The relevance of these principles has become particularly evident in the recent contempt-of-court proceedings before the Court of Appeal.

Section 10(3) of the Contempt of a Court, Tribunal or Institution Act, No. 8 of 2024, expressly requires the Court of Appeal to examine the material placed before it and satisfy itself that a prima facie case has been established before issuing a rule against the person concerned.

The provision is significant because it makes preliminary judicial scrutiny an express statutory requirement.

The recent proceedings involving several public figures have brought this requirement into public discussion. The Court’s responsibility at this stage is to examine whether the statutory threshold has been met, not to prejudge the ultimate determination of the alleged contempt.

We should therefore avoid drawing conclusions about the merits of that pending matter.

Its relevance to the present discussion is the wider principle it illustrates: the law recognises the importance of establishing a sufficient foundation before compelling an individual to answer formal proceedings.

The danger of prosecution becoming an instrument of punishment

There is a fundamental difference between the authority to prosecute and the responsibility to prosecute properly.

A criminal prosecution should not become an investigative experiment in which an individual is first indicted and the prosecuting authority subsequently attempts to discover whether sufficient evidence exists to sustain the charge.

Nor should prosecution be used as a means of responding to political pressure, public controversy or institutional embarrassment.

The independence of the prosecuting authority is essential. Equally essential is the responsibility to exercise that independence with objectivity and fairness.

A person may eventually be acquitted, but an acquittal after several years of litigation cannot necessarily restore lost reputation, financial resources, peace of mind or professional opportunities.

The fact that the law provides a remedy for malicious prosecution does not remove the responsibility to prevent unjustified prosecutions from occurring in the first place.

A question of public confidence and institutional accountability

The credibility of the justice system depends not only on the fairness of trials and the correctness of judicial decisions but also on the responsibility exercised by those who set the judicial process in motion.

Prosecutorial accountability should not be misunderstood as political interference or an attempt to weaken law enforcement.

It is the recognition that every public power must be exercised within the limits of the law and in the public interest.

Where an indictment is filed, the prosecuting authority should be able to demonstrate that the relevant material has been examined objectively and that the decision was taken on a proper legal and evidential foundation.

The Supreme Court’s guidance in Ganeshan Samson Roy provides an important judicial standard against which that responsibility can be understood.

It is therefore desirable that these principles receive wider attention among prosecutors, investigators, legal practitioners, public officials and citizens.

Justice must begin before the trial

The administration of justice must not operate on two different standards of fairness.

Where the law requires preliminary scrutiny of a civil action or a contempt proceeding, the underlying objective is to prevent the judicial process from being invoked without a proper foundation.

The same commitment to fairness must inform prosecutorial decision-making.

The distinction between a reasonable basis to prosecute and proof beyond reasonable doubt must always be respected. A prosecutor is not required to guarantee a conviction before filing an indictment. But the prosecutor is required to exercise independent judgment, examine the available material and ensure that the decision is legally and evidentially justified.

The power to prosecute is a responsibility entrusted to the prosecuting authority in the public interest. It must never be exercised as an automatic response to allegations or as a means of exposing citizens to the ordeal of criminal proceedings without sufficient justification.

This responsibility is Not Confined to  the Attorney General: In particular the Commission to investigate allegations of bribery or corruption (CIABOC ) has its own statutory powers under the anticorruption legislation. The fight against corruption must be uncompromising, but the safeguards of justice must be equally uncompromising. An anti-corruption institution must be empowered to act effectively, while being accountable for the manner in which it exercises that power.

Ultimately, the protection of citizens against unjustified prosecution is not an obstacle to the administration of justice. It is an essential component of the rule of law.

Justice must not begin only when a judge delivers a verdict. It must begin much earlier, with the responsible decision to institute proceedings in the first place.