By Ashan Nanayakkara –
Writer acclaims the act of valor shown by one of the Commissioners of Election Commission (EC) of Sri Lanka, Prof. S. Ratnajeevan H. Hoole to pen down on, what indeed transpired between the EC and the Hon. Attorney General (Hon. AG) in the process of retaining a Counsel for the Appearance in Case No. SC/FR/83/2020 (Charitha Gunarathne vs. Election Commission and et al.) and for other connected matters coming up before the Supreme Court, all of which have filed to prevent the General Election amidst this pandemic. According to what the media reported, the Hon. AG had no wish to provide his service to the EC as the latter is an independent commission. (Being a person who has the first-hand information by representing as one Counsel of the team of Lawyers appeared for the Petitioners over the said Election matters, on 11-05-2020, the writer has very slim memory that the Hon. AG uttered any specific reasons for refraining of defending the EC.) In fairness to Hon. AG, it was just an indication made to the Bench that “We do not wish to appear on behalf of the members of the Election Commission” informed by Indika Demuni de Silva, PC., Senior Additional Solicitor General (SASG). Neither the Chief Justice asked nor has the learned SASG given any reasons for what made her to turned EC away. As per the words of Prof. Hoole and the media – that the Attorney General did not want to appear on Commissioners’ behalf due to the fact that the latter is an Independent Commission, a question can be raised that, could the Commissioners, being public servants, whilst executing their official duties, seek to hire the AG by hook or crook, against AG’s own will. Does the cab-van rule rigorously apply to AG?
Answer lies in the following sections of law:
Section 393 of the Code of Criminal Procedure:
(4) The Attorney-General may nominate State Counsel or employ any Attorney-at- law to conduct any prosecution in any court and determine the fees to be paid to such attorney-at-law.
Section 463 and 464 of the Civil Procedure Code:
463.If such application is not made by the Attorney-General on or before the day fixed in the notice for the defendant to appear and answer to the plaint, the case shall proceed as in an action between private parties, except that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree463. If the Attorney-General undertakes the defence of an action against a Minister, Deputy Minister, or public officer, the Attorney-General shall apply to the court, and upon such application the court shall substitute the name of the Attorney-General as a party defendant in the action.
464.If such application is not made by the Attorney-General on or before the day fixed in the notice for the defendant to appear and answer to the plaint, the case shall proceed as in an action between private parties, except that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.(’464.පෙනී සිට පැමිණිල්ලට උත්තර දීම සඳහා විත්තිකරුට කරන ලද දැනුම් දීමේ නියමිත දිනයේදී හෝ ඊට පෙර නීතිපතිවරයා විසින් ඒ ඉල්ලීම් නොකලහොත්, පෞද්ගලික පාර්ශවකරුවන් අතර වූ නඩුවක් මෙන් ඒ නඩුව පවත්වාගෙන යා යුතු ය. එහෙත් තීන්දු ප්රකාශයක් ක්රියාවේ යෙදීම් වශයෙන් විත්තිකරු සිරභාරයට ගනු ලැබීමට හෝ ඔහුගේ දේපල තහනමට අල්ලනු ලැබීමට හෝ ඔහු යටත් නොවන්නේ ය.)
In the case law of Attorney-General v. Independent Broadcasting Authority  1 All ER 689, Lord Denning made the following observation with regard to the role of the Attorney-General, (at p. 697). It is settled in our constitutional law that in matters which concern the public at large the Attorney-General is the guardian of the public interest. Although he is a member of the government of the day it is his- duty to represent the public interest with complete objectivity and detachment. He must act independently of any external pressure from whatever quarter it may come. As the guardian of the public interest, the Attorney-General has a special duty in regard to the enforcement of the law.
The quoted sections and cases illustrate that, it is not mandatory that the AG ought to extend his service for each and every action committed by a Minister or a Deputy Minister or a Public Officer. The Hon. Attorney-General has a free hand and a discretionary power based on public interest aspect of each case to decide what cases he prosecutes or what not. Thus, Prof. Hoole’s decry over AG acts in discriminatory manner is legally erred perception.
When look at the reasons upon which the AG was not hired or rather refused being hired, good Professor has given some reasons in his writing to Colombo Telegraph. In some of the said Election Petitions, the name of the President is mentioned as a Respondent (this was permitted after 19th Amendment brought to the Constitution), in some Petitions, the Secretary to the President has been made as a Respondent, in all most all the Petitions, members of the Election Commission and the Attorney-General himself have made parties. Inasmuch as the aspirations of His Excellency and the Election Commission are non-simultaneous as well as the ideas of the duo are poles apart in recent history, Hoole says, he personally does not want to hire the AG.
On the other hand, the AG himself, in discreet, at the pretext of the said reasons, declined to appear on behalf of the EC (vide: “…The point here however is that the President and the Commission were at odds”
The decision of dumping AG and retaining a Private Attorney is very gutsy and witty decision made by the learned Professor. This reminds to the writer, a similar matter in which this same legal dilemma was mooted out but ultimately it was held that if AG encounters 2-contrasting positions at a case, he must either give in one Client at the outset or both. In said case, namely, Land Reform Commission vs. Grand Central Limited  1 SLR 24, it was opined that, “In the course of the argument Counsel for the Defendant was asked what would the Attorney-General do if, when appearing for one of the claimants in a partition case, he discovered in the course of the case or in the course of receiving instructions that the State had a claim to the lands claimed by his client. His answer was that the Attorney-General would immediately cease his appearance for the client, advise the State on the basis of the knowledge so gained by him and then appear for, the State. This contention cannot be accepted. It would be improper for him to jettison his client in that way. Unless he has his client’s express consent, he would be acting in breach of the confidence reposed in him and also contrary to the provisions of section 125 of Evidence Ordinance which expressly forbids any Attorney-at-Law to disclose any knowledge acquired by him in the course of his professional employment….” By looking at the aforesaid case, it is clear that unless the Respondent Public Servant is so certain about the honour and the uprightness of the AG, it is a huge dice that Public Servant has to play casting his or her entire fate on the hands of the Attorney-General who is trying much harder to rescue the pezzonovante (in the instant case, may be the President), over innocents. Thus, Hoole’s suspicion over AG appears for him is quite becoming. In turn, the decision not to provide the service to Prof. Hoole (if it is assumed to be true) is equally wise by the AG.
But, is that the only reason, viz, the President and the Election Commission are not concurrent with each other, made Hon. AG to avoid the EC? Writer doubts.
The Holy and Independent Election Commission (or the members of that august Commission) has made following list of follies from the onset of the General Election 2020, to date:
1. By declaring the Election on 20-06-2020, the EC violated Article 70(5)(a), 70(5)(b) and 70(5)(c) of the Constitution;
2. By declaring the Election on 20-06-2020, the EC violated section 10(1)(b)(i) of the Parliamentary Election Act No. 01 of the 1981 (as amended);
3. By declaring the Election on 20-06-2020, the EC violated section 24(3) of the Parliamentary Election Act No. 01 of the 1981 (as amended);
4. Having the chance of invoking Article 33(1)(d) of the Constitution, according to which the President on the advice of the Election Commission has to ensure the proper conditions for the conduct of a free and fair election and referendum, albeit, without following the said law, declaring the Election on 20-06-2020;
5. Knowing the said points of law (which is evident from 2-letters dated 31-04-2020 and 01-04-2020 sent by the Chairman of the Election Commission and the individual letter dated 16-04-2020 sent by Prof. S. Rathnajeevan H. Hoole to the Secretary to the President) by declaring the Election on 20-06-2020, is eating their own words; (read, https://www.colombotelegraph.com/index.php/parliamentary-election-2020-date-of-summoning-of-the-new-parliament/ )
6. Knowing that EC has no powers to go beyond 3-month period after the dissolution of Parliament according to their own letters, by declaring the Election yet again on 20-06-2020 is an act of mala fide;
7. In addition to legal errors that the EC has made, below mentioned outrageous behavior of the members of the Election Commission may have also influenced to reject rendering the service to the EC by the AG. Those are:
a) Prof. Hoole was trying to outsmart the other members by issuing press releases on certain things he is supposed to have talked in camera (vide: Article published in Colombo Telegraph – https://www.colombotelegraph.com/index.php/no-to-new-gazette-letter-to-the-election-commission-prof-hoole/ );
Writer got amused by some of the reactions of the Facebook users after seen the aforesaid Article being posted in the Facebook. Of which some general Facebook users who had gone on to the extent to call the Professor in Electrical Engineering as ‘Hoole the Fool’ after looking at the unprofessional behavior of this Commissioner (In a lighter vein, despite all odds, personal view of the writer is that the content of the every single word in the said letter written by Prof. Hoole is valid and truthful; out of Hoole’s over-enthusiasm, the said content was released to media before it was discussed among the other Commissioners confining to the four corners of Rajagiriya Office. However, when you fail to follow the protocol, will have to be in the mockery of the public eye with an unbearable personal attack);
b) Being an independent member, Prof. Hoole has shown allegiance towards certain party politics through his writings and openly criticized some groups who are the stalwarts of some political parties (vide: https://www.colombotelegraph.com/index.php/democracy-in-crisis-avoiding-dictatorship/ );
Prof. Rathnajeevan Hoole openly slams Rajapakses which taints the independence of the very Commission he is a member of.
c) Chairman of the EC – Mahinda Deshpriya tries to bulldoze the other 2-members and negating the significance of other 2-members in the Commission (vide: http://www.dailymirror.lk/opinion/NEC-Chairman-continuing-as-one-man-commission-Hoole/172-187114);
d) No collective responsibility among the members of the EC who always do not hesitate to draw swords at each other before Media and on the Facebook (vide: http://www.dailymirror.lk/opinion/NEC-Chairman-continuing-as-one-man-commission-Hoole/172-187114, https://www.facebook.com/wwm.deshapriya/posts/2468728213437505);
e) Allegation against Chairman of the EC – Mahinda Deshpriya using his official capacity, at a time of an Election is declared, to repatriate his son to Sri Lanka from London (vide: , and the Answer given by the Chairman is on, https://www.facebook.com/wwm.deshapriya/posts/2482214072088919 );
f) and the list goes on.
After looking at the above said temperament, a rational Attorney (not necessarily the AG) may not once but thousand times ponder whether to accept a brief of such a Client. Hence, rather than the conflict of interests that the Hon. Attorney-General had to contemplate, the AG must have surely assessed the integrity of the members of the Commission and the bad track records in recent past of this crest-fallen Commission, before he going to defend this Client. Thus, rather than Commissioners declined to hire the AG, the correct perspective would have been that, the AG may have lost the interest on their Client. Compared to the amount of stupidities their Client has achieved last couple of days as mentioned above AG may have thought defending the Election Commission or its Members is a case of flogging the dead horse.
In addition to cast-off the providing of services to EC, another instance where the wrath of Hon. AG was openly shown towards the Election Commission and its Members when AG wrote back to the EC on legality of accepting Nomination Papers of the upcoming Poll on certain days which are said to have Public Holidays. By answering to the said question, Attorney-General retorted back by letter dated 08-05-2020 with a gawky answer, viz, “It is observed that nominations have already been accepted by you in respect of the Parliamentary Elections of 2020. In this context, it is further observed that you have also taken consequential steps for the conduct of such elections. Therefore, in the circumstances, you are required to follow the procedure established by law for the conduct of such elections”. This is a gimmick played by the Government Lawyer which has nothing but some tautology of words. The moment the writer saw this letter he could not stop his laugh. This may be the most prudent and most sensible letter sent by an Attorney-General in the last century to a Public Servant. Writer recollects how students in law school used to bluff the questions converting the same in to their answers without adding any extra knowledge thereto from outside. AG is no second to that. That is why Hoole is mad at AG and writes as, “…I did not need a PC to tell me that I must follow the procedure established by law. The law requires…”. Yet due to the ignorance of poor Public Servants the latter had to consult the Government Lawyer which ultimately paved them being humiliated before the public. The ignorance of law reminisces one beautiful quote of Shakespeare in King Henry the Sixth, i.e., “…But in these nice sharp quillets of the law, Good faith, I am no wiser than a daw…” – Part I, II, iv.
If one reads between the lines of the letter sent by the AG, the underline message hinted out by the Hon. AG would be, that, “if you dare to take all the legal decisions without consulting us, thus far; why now”. What an insult!
It is a trite law that, if the procedure is laid down in black and white, the Election Commission as well as other Public servants could only exercise ministerial acts. They have no much freedom to deviate from the express law. Nevertheless, In the entire exercise from declaring the dates of the nominations to publishing the last Gazette of naming 20-06-2020 as the date of the Poll, the Election Commission has made countless amounts of mistakes which could have averted had the EC consulted the AG. It is true that the Commission has its own powers to take decisions; but when it comes to the legality of those actions, always they could and should consult the AG. Unlike a private party, that luxury is granted to the Commission at free of charge. Ironically, the EC failed to resort to that option until the water went over the nose.
Coming back to the topic of public servants being adhered to express provisions of law, it is well-settled law that when the law is very clear and unambiguous, rather than following that, the Public Servants have no power to invent things. This is called, “ministerial acts”. If public servants act contrary to the express provisions of law, that is beyond their mandate and deems to be ultra vires actions. Read: In Jain and Jain in The Principles of Administrative Law (1988) 4th Ed. at page 325 states as follows: “…Functions dischargeable by the administration may either be ministerial or discretionary. A ministerial function is one where the relevant law prescribes the duty to be performed by the concerned authority in certain and specific terms leaving nothing to the discretion or judgment of the authority. It does not involve investigation into disputed facts or making of choices. The authority concerned acts in strict obedience to the law which imposes on it a simple and definite duty in respect of which it has no choice…” The above said position was re-iterated by his Lordship Justice Ismail in Farook v Siriwardena  2 Sri LR 124 at 129 – 130. It was held that, “…There is nothing in the above provisions to indicate that the elections officer should himself take any further steps to ascertain whether the member has been lawfully removed from the party, quite apart from the information furnished by the secretary under section 10A(3) of the Ordinance. The elections officer has a ministerial duty to perform on receipt of the information from the secretary in strict obedience to the provisions contained in section 10A(1) and (2) of the Local Authorities Election Ordinance…”
Thus, the public servant must always keep in mind that their discretion is always curtailed by the provisions of law from which they are governed by. If they failed to follow the law (including the AG himself), the consequences have to be paid with high cost just like the Election Commission is now undergoing. In frank, it is not an exaggeration to say that the EC is at a stalemate with their wrong moves. Writer afraid to say that, Prof. Hoole and his other 2-collegues are between the Devil and the deep blue sea. That is why the EC has passed the ball to the higher most courts in the country and waits till the determination comes from the Supreme Court.
This is not the first time the EC tried to usurper their powers which have not been vested upon them. Writer is possessed with all the documentary proofs to show that this same members of the Election Commission one time delayed to appoint afresh member to the Municipal Council of Negambo from United National Freedom Front (UNFF) without complying to section 10A(1) and (2) of the Local Authorities Election Ordinance. UNFF, a recognized party, having removed its member who represented Negambo Municipal Council, on or about 22-02-2019, without having any Court Order being given against the UNFF, the Election Commission and the Director General of Elections, Mr. Saman Shri Rathnayake, even after 21-days-time period prescribed (in terms of law, name of the new Member must be published in the Gazette after expiration of 21-days from informing the removal of the previous member unless there is a court order otherwise…), delayed the publication of the Gazette of the new Member to the Municipal Council for almost 4-months. Ultimately, only after referring the said matter to the Bribery Commission, on or about 01-07-2019, the Gazette Notification No. 2130/07 was published by appointing the new member by the EC. The writer possessed with the correspondence, that how the Election Commission and the Director General of Elections, Mr. Saman Shri Rathnayake went on to the level of challenging the merits of the internal disciplinary inquiry of the Party that should have never come under the purview of the Election Commission or the Director General of Elections. Duty to follow the section 10A(1) and (2) of the Local Authorities Election Ordinance is a mere ministerial act which bears no choice to the EC. Forgetting the said sections of law, the unlawful attempt of the EC to go on a voyage of discovery of checking the veracity of the internal inquiry was shocking. This was a sheer act of ultra vires. The undue delay protracted without any court order even after removal of the previous Member of the Municipal Counsel, solely created by the Election Commission. The benefits accrued whoever by such an offensive action was best known to the Election Commission alone.
In this premise, it is established fact that, time to time, the EC and its members have performed some stunts on their whim and fancy which are absolutely outside their boundaries. Thus, NO WONDER ATTORNEY-GENERAL DOES NOT DEFEND THE ELECTION COMMISSION.
Not just the members of the Election Commission who are always at fault; AG too is a mortal and vulnerable to frailties. Prof. Hoole in his daring Article, highlighted the AG’s new found virtue called, “could not appearing due to conflict of interests”. Although the writer converses with the majority of what good Professor has written on, one area that Prof. Hoole and the writer could concurrent with is the discriminatory treatment of the Hon. Attorney-General to his Clients.
Though at the election Petitions which were spoken above, the AG declined to appear on behalf of the members of the Election Commission, under the pretext of AG is duty bound to uphold the sacrosanct concept of ‘keep away from conflict of interests’, history never fails to give instances where that the AG has ravished that very concept.
One instance happened when President J. R. Jayawardene’s time, in 1981. Grand Central Ltd. instituted an action in the District Court of Colombo and the said company got an enjoining order in their favour at the first instance. Thereby, the Defendant of that matter went to the Court of Appeal. In the Court of Appeal, on behalf of the Defendant, then Hon. Attorney-General, Mr. Shiva Pasupathi along with 2-State Attorneys came and informed to the Court that (irrespective of office they held) they mark their appearance as plain Attorneys-at-Law (and not in their official capacity as Attorney-General) under directives of the President. This weird move was disallowed by the Court of Appeal and the Supreme Court too by marking following striking set of phrase on the case record, refused the Application made by the AG. Those words are to say, “…The law does not permit the Attorney-General to play Jekyll and Hyde. He had taken his oath of office as required by the provisions of the Constitution. Once an Attorney-General always the Attorney-General until he relinquishes office…”
Whereas, Prof. Hoole has highlighted how during the term of the Attorney-General, K. C. Kamalasabesan, the AG tried to have some arm-twisting game in a matter where UGC and the University Dons involved in, and luckily, owing to Mr. Elmo Perera AG backed off.
The writer too, recently, experienced such a revolting behavior from the Hon. AG in 2-bribery cases i.e. 81079/MC6/Colombo/Private Plaint, PHC/32/2017/Colombo. In the said 2-cases, in the Magistrate’s Court, AG appears on behalf of the Prosecution (Mr. X); whereas, in the identical (for the same incident and for the same transaction) High Court Case, Hon. AG prosecutes against Mr. X. This blasphemy is being committed, in the Magistrate’s Court case through one Deputy Solicitor General whose name was mentioned at the Parliamentary Select Committee, for buying time without sending prompt advices to the CID despite who had the ability to understand what Sharan had been preaching as to the knowledge of Tamil language possessed by him, pertaining to pre-investigations of Easter Attack, and in the High Court case through one Female Senior Additional Solicitor General and President’s Counsel who said to have impeccable career record at the Attorney General’s Department thus far. Both these Lawyers who represent the AG are quite aware that they are beating the same man by appearing and attacking vice versa. Sacrilege! Being the senior most member in the Bar, AG appears for and against to the SAME MAN knowing that which can even end up with issuing a Ruling against the AG by the Supreme Court for violating professional etiquettes. The said man (Mr. X) has lost all his basic rights as a human being, AG has hijacked his Magistrate’s Court case without consent of Mr. X with nothing but mala fide to throw a spanner in the MC case and if the sabotage attempt is successful, the AG could easily prosecute Mr. X in the High Court case. Against this backdrop, Hoole is lucky to get the chance to have the right to audience through his own Lawyer by his own aspiration. Hence, dear Professor! this is not the first time AG is not truthful and unfair to his Clients; and remember, nor will this be the last.
Writer concludes quoting the golden words of former Chief Justice Neville Samarakoon, which encapsulates the Holy duty cast on the AG as follows: “The Attorney-General of his Country is the leader of the Bar and the highest Legal Officer of the State. As Attorney-General he has a duty to Court, to the State and to the subject to be wholly detached, wholly independent and to act impartially with the sole object of establishing the truth. It is for that reason that all Courts in this Island request the appearance of the Attorney-General as amicus curiae when the Court requires assistance, which assistance has in the past been readily given. That image will certainly be tarnished if he takes part in private litigation arising out of private disputes…”
But the question is can such Godly decrees are expected to be rendered by sinful men.