By Saliya Pieris –

Criticism of the Department

The last few months have seen an unprecedented attack on the integrity and reputation of ‘the Department’. Yuvanjana Jawaharlal Wanasundera Wijayatilake PC one of the most non-controversial persons to hold the office of Attorney General, and his Department is under siege , notwithstanding the fact that he was in the aftermath of the Presidential elections credited with quietly thwarting efforts of the former regime to declare a State of Emergency just as the results were being declared.

The strong criticism of the Attorney General’s Department and the loss of public confidence are reflected in the report of the United Nations High Commissioner for Human Rights.

The AG’s role

In the legal hierarchy in Sri Lanka, the Attorney General is second only to the Chief Justice. This is why when the Attorney General is elevated to the Supreme Court; it is usually to the office of Chief Justice – as was the case of Chief Justices Alan Rose, Hema Basnayake, Victor Tennekoon and Sarath N. Silva. One exception was Justice Eva Wanasundera who was appointed as a Supreme Court Judge by President Mahinda Rajapaksa.

In different countries Attorneys General play different roles. In the United Kingdom, the Attorney General is the chief law officer of the State but does not play a role in criminal prosecutions, which is tasked to the Crown Prosecution Service (CPS). The Attorney General’s post is a cabinet portfolio and the appointment is a political one. In the United States too the Attorney General is a member of the Cabinet and heads the Justice Department. The Justice Department conducts federal criminal prosecutions. However in certain instances Independent Counsel or Special Prosecutors are appointed to prosecute sensitive matters. As such the Watergate incident which led to the resignation of President Nixon, the Whitewater and Monica Lewinsky scandals were all prosecuted by independent counsel.

The role of the Attorney General in Sri Lanka is somewhat different. The Attorney General is the Chief Law Officer of the State. However unlike in the US or UK in Sri Lanka the role of the Attorney General is essentially a non-political role. On one hand it is the Attorney General and his officers who prosecute in all major criminal cases and have the ultimate say in criminal matters- except for those relating to Bribery and Corruption. On the other hand they advise the government of the day in a wide range of matters ranging from mundane day to day civil and criminal matters to complicated issues pertaining to the constitution, international trade and investment and international law.

In terms of the Constitution the Attorney General is required to vet every Bill before it is presented to Parliament and also amendments made to Bills during the stage of enactment. He reports on their constitutionality to the President or to the Speaker. He appears for the State in all Constitutional matters such as challenges to Bills, interpretation of the Constitution and Fundamental Rights applications.

In all sensitive legal matters the Attorney General is generally consulted and his advice sought, although not necessarily acted upon. It is known that before President Maithripala Sirisena decided to restore the ousted Chief Justice Dr. Shirani Bandaranayake he decided to seek the advice of the present Attorney General, although perhaps the advice was not followed in its entirety.

Such is the role of the Attorney General that he is required to advice the regime of the day in matters involving the law and the constitution which are politically sensitive. The government would inevitably wish to pursue its political agenda, which may be sometimes at cross-purposes with what is constitutional or moral or ethical. The Attorney General has to perform a delicate balancing act in advising the government on conforming to the law and the constitution, while permitting it to pursue its legitimate political agenda, in conformity with the mandate it has from the people. Every government expects the Attorney General to help push its political agenda through the legal system.

Criminal prosecutions and the AG

In criminal cases the Attorney General performs a pivotal role- He is the ultimate authority in deciding whether or not to proceed with a criminal prosecution. Technically in prosecutions in the Magistrate’s Court, it is the Magistrate who decides whether or not to continue a case. However no Magistrate is likely to proceed with a prosecution contrary to the Attorney General’s advice. In High Court prosecutions, it is the Attorney General who decides whether to send indictment to the High Court or not. He has the power to withdraw cases before the Court, often with the permission of the Court (which is rarely refused) and in extreme cases he can enter a “nolle prosequi” , informing the court that he is not proceeding with the case, and the case against the accused will come to an end.

The Attorney General plays a pivotal role not only in deciding upon and in conducting prosecutions and in advising the police and other investigating authorities, but also in ensuring that the citizen is protected from the abuse of the criminal process. In deciding whether or not to prosecute the Attorney General is called upon to take a decision on the law, the available evidence and the attendant circumstances. There are many times when the Attorney General has played an important role to prevent people from being needlessly dragged through the trauma of criminal prosecutions. The Attorney General is an important bulwark in the criminal justice process and he is required to play an important role in preventing a miscarriage of justice.

It is in the backdrop of this vital role that the Attorney General plays in the legal system of Sri Lanka that the conduct of the Attorney General and his officers is being subject to scrutiny.

Politicisation of the AG

Since the early part of the 1990s the role of the Attorney General has become increasingly politicised. It was well known that President D.B. Wijetunge placed much reliance on Attorney General TIlak Marapone PC that he picked the latter’s brains not only on legal matters but also on political matters. At that time it was told on the grapevine that even the dissolution of Parliament in 1994 was on the latter’s advice.

Governments have for the last three or four decades wanted to have an Attorney General whom they are comfortable with-politically. That is why after a short stint as Attorney General , Shibly Aziz PC had to make way for Sarath N Silva to return to the Attorney General’s Department , from the Supreme Court. There was precedent in that appointment, since both Hema Basnayake and Victor Tennekoon had been officers of the AG’s Department, who were elevated to the Supreme Court and then returned as Attorney General before being finally elevated as Chief Justice.

The most overt political appointment to the office of Attorney General was in December 2008, when Mohan Peiris PC, a former Senior State Counsel who had reverted to the private bar and distinguished himself there was appointed directly as Attorney General, bypassing the Solicitor General Priyasath Dep PC. At the time of his appointment it was known that he was especially close to the Defence Secretary Gotabaya Rajapaksa.

Abuse of the Criminal Process

During different periods the Attorney General and the Department have at times been accused of using the criminal process to assist different governments of the day to pursue their political agenda. The Director Public Prosecutions (an office in the AG’s Department) during the SLFP regime from 1970 to 1977 was accused of helping the then regime to pursue a vendetta against political opponents- such as Lalith Athulathmudali. The prosecution of Gamini Dissanayake during the Premadasa era was another instance.

Perhaps the most blatant of these was during the tenure of Mr. Peiris as Attorney General when General Sarath Fonseka was relentlessly prosecuted with case upon case being piled on him, in what was clearly the pursuit of a vendetta. The role of the Attorney General also was strongly criticised over the withdrawal of several cases where politicians or their cronies were involved. In one sensitive case where a government official was being prosecuted , the prosecuting Senior State Counsel, now a High Court Judge was so annoyed that he was instructed to withdraw a case , that he went to Court and told Court that he has instructions to withdraw but he doesn’t know why it is being done because there is adequate evidence against the Accused. This gave the cue to the High Court Judge to refuse the Attorney General’s application for withdrawal, although ultimately at the end of trial the accused was acquitted.

In the early 1990s Attorney General Thilak Marapone came in for widespread criticism over his decision not to pursue a case of child abuse against a former Superintendent of Police. He maintained that it was the right thing to do given the serious discrepancies in the prosecution case and the evidence of witnesses.

In 1994 Bribery and Corruption cases were taken away from the Attorney General’s purview because it was felt that the Department was a stumbling block in prosecutions. However even today the Bribery Commission relies heavily on the expertise of the Attorney General’s Department. All major prosecutions and appeals are done by law officers of the Department.

The lackadaisical attitude of the Department towards torture cases as well as serious human rights abuses including instances of deaths in custody, racial and religious hatred have also contributed to the criticism of the Department.

The Avant Garde Case

The present Attorney-General and his deputy- the Solicitor General have been criticised over their decision in the Avant Garde case not to pursue charges under the Firearms Ordinance and the Offensive Weapons Act. Confidential information leaked from the Department show that at least one senior officer held a contrary view that charges under the Firearms Ordinance could be pursued at least against the suspects. What was unfortunately not publicised is that both the Attorney General and Solicitor General had shared the view that while charges under the other laws should not be framed, that nevertheless the corruption investigations should be pursued.

Forgetting the traditional role of the AG

In criminal matters as well as in the area of public law, some officers of the Attorney General’s Department are accused of not demonstrating that same degree of impartiality and objectivity that was seen in the past. Lawyers complain that State Counsel more than in the past seem to rely on the police and state officials and tow the official line even in the face of brazen violation of the law and the constitution. The allegation is that the Attorney General’s traditional role as being the protector of the citizen is sometimes forgotten. There is a perception, that at least some officers have forgotten their sacred duty to prevent a miscarriage of justice.

Politicisation

Although not a majority, some senior officers are even accused of having become politicised in order to enhance their career prospects. One middle ranking officer joined President Rajapakse’s Presidential Secretariat on secondment and was accused of interfering with not only the AG’s Department but also the judiciary. For some officers in the Department this officer was the pipeline to the executive President. Some say they had no choice in the face of extreme political pressure.

There is also the view that the recruitment process lacks transparency and there are several instances of outstanding young lawyers being overlooked for recruitment as State Counsel, simply because they did not have the right contacts.

Maintaining independence under pressure

It is these allegations and criticisms over a period of time that has now come to a head. To be fair by those who held office, some of them have stood firm in the face of an overarching executive. One senior officer told me that he was in the Attorney General’s Chambers when the late C.R. de Silva PC was Attorney General. He overheard a telephone conversation between the Attorney General and a VVVIP, who was a close personal friend. After listening to the caller at the other end, the Attorney General replied in Sinhala “Machan, eka nam karanna baa” (I can’t do that).

Making the AG independent

The 17th amendments as well as the 19th amendment were introduced to make the office of Attorney General independent. Some time ago Professor Savithri Gunasekere spoke on the importance of making that office independent. Decisions on criminal prosecutions have to be taken objectively taking into account the investigation material, the provisions of the law, and the real prospect of a conviction. The Attorney General cannot take decisions to prosecute or not to prosecute based either on the needs of politicians of whatever hue or on the basis of public opinion or speculation.

Appointing the next AG

In early 2016, the incumbent Attorney General retires. There is already much speculation as to who would fill the vacancy. Today the office of the AG can be filled only when the President’s nomination is approved by the Constitutional Council. There is one school of thought who want the Attorney General to be an outsider appointed from the private bar- probably ‘an old boy’ of the Department. They believe that the ills of the Department will be remedied only by such an approach. This is oblivious to the fact that the two recent experiences of bringing in an Attorney General from outside were unmitigated disasters.

It is important that when the next appointment is made it should be done in such a manner so as not to undermine the confidence of the present officers of the Attorney General’s Department. Officers of the Department should not be made to feel that they have no prospect of promotions and that promotions are dependent on political patronage. They must feel that their career prospects depend on their performance and their distinguished conduct as Law Officers of the State. Any effort to impose upon the Department an Attorney General from outside will demoralise the Department further and will push it further on the downward spiral.

Looking inward

Rule of Law requires the Attorney General being given the space to be independent and impartial- which is required of him. For this end on one hand the government must ensure the independence of the office. On the other hand the Attorney General’s Department too must look inward and see in retrospect what went wrong and to take remedial measures and re-establish standards.

It is still possible for the Attorney General’s Department to be what is expected of it – an institution highly respected and regarded for its professionalism and for conduct beyond reproach.