By P. Soma Palan –
P. Soma Palan
This refers to the above headed report in the Daily Mirror of 11th November 2021. The Court of Appeal ruled that “the Court would not interfere with the Attorney General’s Prosecutorial Power”. I wish to express my views as citizen and not of a legal kind, as follows:
1. The Judiciary is the Custodian of peoples’ Rights. The Court adjudicates disputes between subject and subject and between subject and the State.
2. The AG has already exercised his Prosecutorial Power and indicted the accused. It is the withdrawal of the Indictment that is challenged before the Court by the Petitioners. Whether this withdrawal is justified or not is the subject matter of the Petition and not the Indictment itself.
3. Surely the Court should seek to know the reason for this withdrawal of the indictment which is pending judicial process in Courts. Whether the reason given is maintainable on the principle of natural justice.
4. Further an Indictment is framed after intensive study, examination of the Investigations made and on the facts and evidence available to the AG. It is only after he is satisfied that there is a prima facie case for framing charges against the accused, that an indictment is made.
5. It is irrelevant whether the decision was that of the previous AG or the present.
6. Assuming that the reason for withdrawal of indictment or the case is due to absence of any evidence on second thought, it shows the incompetence of the AG. Further there is no need to withdraw the case. If there is no evidence the case can take its own course and the Court is the proper Authority to decide whether the evidence is culpable or not. If there is no incriminating evidence it will dismiss the case. AG’s purpose would have been achieved in its normal course.
7. It appears to me that the AG fears that there is evidence and the accused will be found guilty of the charges by the Court, which is the real motive for the withdrawal of the Indictment.
8. The Court’s ruling that it cannot “interfere with AG’s Prosecutorial Power”will be a dangerous precedent, because the AG can withdraw indictments and cases at his whim and fancy , arbitrarily and capriciously without giving valid reason.
9. If this happens, it is a negation of natural justice.
10. It is not a case of the Courts “interfering with the Prosecutorial Power of the AG” but the State interfering with the Judiciary through its Agent, the AG.
11. Moreover, an already overloaded Court with cases will incur time, cost and energy due to the AG serving Indictments and then withdrawing them capriciously. For which the Courts should be compensated.
Bernard / November 21, 2021
Soma Palan has very quickly exposed the AG and the Judiciary. Clearly and concisely. The withdrawal of cases which we see today are centered around people belonging to a certain political party. Any guesses what case will be withdrawn next? Good ole Dappula should make a comment or two.
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Captain Morgan / November 21, 2021
Sri Lanka’s Executive and Legislature gradually became corrupted markedly after the 1970s but the judiciary still held its ground until around the year 2005. After that the judiciary also became gradually corrupt and now all three pillars of government have become totally corrupt. The corruption reached new heights after the current president took over the reigns of power. This is very, very sad!
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Sampath Sam / November 24, 2021
This is a big blow to those who thought some superior courts are less politicized over the others. On academic grounds, one can understand this kind of frustration as a part of the systemic outcome. When the court system is in the subordinate executive by the constitution of Sri Lanka itself, what else one can expect from the court.
The real problem is having excessive authority to central government and our judiciary is under the tune of executive practically and constitutionally, which eventually make the courts as servants of dictators, racism, and barbarism which those governments and deep states wanted to have.
The only way possible to come out of this mess is moving toward a federal system in which multiple governing systems including multiple superior courts emerge and it becomes harder to bully the court by the central government and thereby the judiciary will have a say in protecting the justice and prevent corruption. And citizens will have a chance to pick relatively bias-free courts to seek justice.
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Sampath Sam / November 24, 2021
Dear CT Pls ignore the above comment and accept the below one as there are a few corrections.
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Sampath Sam / November 24, 2021
This is a big blow to those who thought some superior courts are less politicized over the others. On academic grounds, one can understand this kind of frustration as a part of the systemic outcome. When the court system is subordinated to the executive by the constitution of Sri Lanka itself, what else one can expect from the court.
The real problem is having excessive authority in the hands of the central government and our judiciary is under the tune of that executive wing, practically and constitutionally, which eventually make the courts as servants of dictators, racism, and barbarism which those governments and deep states wanted to have.
The only way possible to come out of this mess is, moving toward a federal system in which multiple governing systems including multiple superior courts emerge and it becomes harder to bully the court by the central government and thereby the judiciary will have a say in protecting the justice and prevent corruption. And citizens will have a chance to pick relatively bias-free courts to seek justice.
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