By Javid Yusuf –

Javid Yusuf

The Attorney General’s Department  has increasingly come under the  spotlight in recent weeks particularly after the Commission to inquire into the controversial Central Bank Bond issues has started functioning. This is mainly due to the members of the AGs Department team succeeding in eliciting hitherto unknown aspects of the whole Bond exercise before the Commission whereas it is reported that in the case of investigation files numbering over 70 sent to the AG, no indictments have been filed despite nearly two years having elapsed since such investigations began.

The latter aspect has been troubling civil society activists and even some Ministers  who have been raising the issue for the past year without getting any answers giving rise to speculation about deals being struck and deliberate inaction on the part of the AGs Department.

However in the past few weeks many UNP Parliamentarians have begun publicly questioning the failure to file indictments in respect of the 70 plus investigation files in the custody of the AG. This cry has reached an increasing intensity after they have observed the AGs Department team before the Commission of Inquiry being able to lead startling evidence relating to the Bond issue as well as that relating to the Penthouse leased out by former Minister Ravi Karunanayake’s family.

Not surprisingly  UNP MPs have now begun to feel uncomfortable and  are questioning the actions of the AGs Department  before the Commission contrasting the perceived inaction of the Department in relation to the 70 plus files.

Such a comparison seems unfair by the AGs Department without knowledge of the full facts relating to the 70 plus files  being in the public domain. In contrast the AGs Department’s conduct before the Commission can be easily understood. The AGs team has been assigned to assist the Commission and such assistance is rendered under the supervision and direction of the Commission.

In fact before any witness is called Counsel has to satisfy the Commission with regard to the purpose and relevance of the evidence sought to be led and only if the Commission is so satisfied will it allow such evidence to be led. No Commission, Court or Tribunal allows evidence to be led at the whim and fancy of the AG or any other Counsel. As evidenced by what has transpired before the Commission it is manifestly clear that such is the case in this Commission too. The Commission can also on its own motion direct that particular witnesses can be called.

In the case of the 70 odd files the public has to grope in the dark without any information with regard to what has happened. Clearly the Attorney General cannot hold a Press Conference and explain what has or has not happened as investigation details and matters relating to such investigation can only be made public in the proper forum, namely the Courts, at the appropriate time. But what should have been done  is for the Minister in charge of the Attorney General’s Department  Mr. Wijeyadasa Rajapakshe to call for a progress report with regard to the action taken and report to Parliament.

This was necessary from two points of view. One is the right of the public to know and secondly to protect the Attorney General and his officials from unfair criticism.

The Justice Minister (now relieved of his portfolio ) has declared that he cannot direct the AG as to who should be prosecuted and not be prosecuted as it would  amount to exercising improper influence. One could not agree with him more. However he has to reconcile this with his statement made several months ago that he would not allow the former Defence Secretary Gotabaya Rajapaksa to be arrested. The currently agitated UNP Parliamentarians should have taken him to task at that time as that too would have amounted to undue interference.

It is an essential feature of the Rule of Law that the Attorney General  be allowed to function independently. His is a quasi judicial role and is different to that of other public officials in as much as his actions can eventually affect the rights of citizens. Any public criticism of him and his officials in the conduct of their duties must be avoided more so by Parliamentarians and Politicians in order to ensure public confidence in the independence of the administration of justice. There are many accepted practices by which any concerns can be raised such as making representations to the Attorney General or canvassing his decisions before an appropriate Court.

In this context the recent criticisms of the Attorney General’s team and in particular their style of questioning before the Commission  by Members of Parliament  is deplorable and may be (to be charitable ) due to a lack of understanding of the way how the legal system functions.

Lawyers have different styles of questioning witnesses in Court. Some Lawyers adopt an aggressive approach with raised voices  while others adopt a cold, calm and calculated style of leading evidence or cross examining witnesses. Judges give a great deal of latitude to lawyers when they question witnesses taking care to ensure that witnesses are not bullied or intimidated but also at the same time ensuring that the goal of ascertaining the truth is not compromised.

This is how Court proceedings have been conducted in our country over the years in what is described as the adversarial system of justice. Judging by media reports the Commissioners at the Bond inquiry have been diligently exercising their supervisory role while keeping in mind the mandate of the Commission to ascertain the truth relating to the Bond transactions.

Another unsatisfactory feature of the public discourse with regard to the Commission’s proceedings has been the call from public platforms for the Commission to summon this or that witness. Again this is totally  unacceptable as this is a matter entirely within the purview of the Commission. If anyone feels that a particular witness could be of assistance to the Commission he or she may move the Commission by making an application before it rather than making public calls to summon such witnesses as it can mislead the public and cause wrong perceptions in the mind of the public.

The AGs Department,  assisted by a team of unidentified but able team of investigators,  have played a positive and dynamic role  before the Commission by presenting  a great volume of  evidence  that will be of great assistance in arriving at its findings. It will be unwise and unsafe for us  to arrive at a  conclusion on the allegations relating to the Bond issues based purely on media reports of proceedings before the Commission.

That is best left to the Commissioners who will undoubtedly arrive at an appropriate conclusion on an evaluation of the totality of the evidence. Yet it is not far wrong to say that from the evidence that has transpired the goings on behind the scenes of the Bond issues are mind blowing. The concept of Bonds and the implications relating to issues relating to them are not easily understood by laymen who are not economists. Fortunately the Commissioners and the AGs team seem to be on top of the subject and are seized of the intricacies of the entire Bond exercise.

In fairness to the AGs Department, to concerned citizens and to those who have been the subject of the investigations relating to the 70 odd files it was necessary that the former Minister of Justice cleared the air by making a public statement regarding the status of these files. We hope the new Minister of Justice when appointed would do so. Also the AG and his officers have to discuss and device a way of dealing with the issue of the delay in attending to these files without compromising on the need to ensure that it is a transparent process that does not do injustice to those who are the subject of such investigations and is not perceived as a form of targeting of individuals particularly because there is a political background to these cases.

There is precedence for prioritizing the prosecutions of categories of offences by the AGs Department. For example cases under the PTA were prioritized and expedited  on the basis that the accused were in custody and bail could not be granted pending trial. One possibility is for the Cabinet to give a direction that all cases investigated by the FCID and Bribery Commission be prioritized on the basis that corruption has reached epidemic proportions. However this writer is not convinced that such a categorization would meet the standards of fairness in a democratic society and the suggestion is made only to stimulate thinking as to how it can be done while ensuring  the norms of a democratic society. Another approach would be to ask the National Human Rights Commisssion as an independent and therefore non partisan body to advise the Government on the guidelines or criteria that maybe followed by the government in resolving the problem.