5 February, 2023

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The Role Of The Attorney General In Sri Lanka

By Harsha Gunasena

Harsha Gunasena

The Attorney General (AG) is the principal legal officer who represents the state in legal proceedings and gives legal advice to the government. In addition to that AG is the Public Prosecutor. In cases of corruption, it is required that the same AG conduct the prosecution of government entities or officials. This situation is vulnerable to a conflict of interest. In certain countries such as South Africa these two roles are played by different persons. In the UK AG is a MP and attends cabinet meetings and thereby he is accountable to the Parliament.  

Attorney General Sanjay Rajaratnam

In the past 2 years, a large number of corruption cases have been halted or withdrawn by the AG citing lack of evidence even though the cases were instituted during the previous government by the then AG who is the present Chief Justice, on the basis that there was adequate evidence to proceed with prosecution. This prompted a large number of lawyers to surround the AGs office during the time of Aragalaya asking explanations form the AG for such withdrawal of cases. Generally, the AG’s department reviews files carefully whether to file indictment based on the establishing of a prima facie case. There are several levels of reviews of the files and finally signed off by the AG especially in respect of controversial cases. Therefore, it was unlikely that there was lack of evidence in those cases.

An independent Public Prosecutor is required in ensuring that justice is not only done but also seen to be done. The Attorney General is able to serve the Government ensuring that they act within the law and independent Public Prosecutor will be able to prosecute criminals without fear or favour independent to the authority of the Government.

Jayantha Jayasuriya CJ (Former AG)

Different Models

There are different models in respect of the roles of AG and the Public Prosecutor. In the first model both positions are held by one person, and he/she is a public servant who is not subject to direction of any other authority. Sri Lanka is having this model along with Pakistan, Singapore, and many other countries. In the second model AG is a political appointment as in the UK and holding a ministerial office. The AG is responsible for public prosecution as well. In the third model the office of AG is combined with the portfolio of Minister of Justice such as in Canada and Australia. Public prosecution comes under the AG. Forth model is that the Public Prosecutor is a public servant and responsible to the President. This model is adopted in Tanzania. The fifth model is that the Public Prosecutor is a public servant and in certain cases the AG is empowered to give directions to the Public Prosecutor. This is practiced in Zambia. The sixth model is the South African Model which is described below.

South Africa

The South African model is different. According to Article 179 of the South African constitution there is a national prosecuting authority headed by a National Director of Public Prosecutions and the prosecuting authority has the power to institute criminal proceedings on behalf of the state. According to Article 181 this authority is independent and functions under the constitution. Solicitor General who is the chief legal advisor of the state in all civil litigation matters report to the Minister of Justice according to State Attorney Act.

Therefore, there is a clear division between the two roles of public prosecution and being the legal advisor to the government.

In the UK and in India Public Prosecutor is under the direction of AG. In both countries AG does not have any authority to interfere with the prosecutorial decisions. In the UK since the AG is a cabinet Minister he is under the Parliamentary scrutiny and thereby the actions of the Public Prosecutor.

Sri Lanka

Under the constitution the AG will have to ensure the constitutionality of the Bills and the AG shall be notified in all proceedings of the Supreme Court.

Referring to Fundamental Rights cases the following was stated on the website of the AG Department. “in cases where there are allegations of torture against public officers cited as respondents, the Attorney General may decline to represent such officers in those proceedings. Such a decision of the Attorney General is premised upon the reasoning that a conflict of interest may arise in the event a finding is made by the Supreme Court against such officers alleged to have committed to torture”

The same conflict of interest arises when the prosecution is needed against public officers.

In Section 32 (1) of the Administration of Justice Law No. 44 of 1973, the duty of Attorney General (AG) was stated as follows. “It shall be the duty of the Attorney-General to represent the Republic of Sri Lanka in courts established under this Law, to give advice to the Government of Sri Lanka upon all legal matters, and to discharge the functions conferred on him by or under this or any other written law.”

The President as well as the Legislature are integral parts of the Republic. However, in the proviso of the Article 35(1) which deals with the immunity of the President it was stated as follows. “Provided that nothing in this paragraph shall be read and construed as restricting the right of any person to make an application under Article 126 against the Attorney-General, in respect of anything done or omitted to be done by the President, in his official capacity:”

Therefore, the role of AG goes beyond representing the Republic in courts and he will have to defend himself in the courts against the follies of the President. Therefore, in essential he is the lawyer of the President.

That was why he had to say, “having regard to the role of the Attorney General under the Constitution, I am of the view that expressing an opinion on the said questions would be deemed inappropriate.” when the Speaker requested him to give an opinion of the constitutionality of the removal of the Prime Minister by the President on 26 October 2018.

Therefore, when there is a dispute between the Executive and the Legislature the AG has to take the side of the Executive. The role of the Public Prosecutor contradicts with this role since the Public Prosecutor will have to face the situations  leading the process of  indicting persons coming under the Executive.

Under the 21st amendment to the constitution AG should be appointed by the Constitutional Council. Really speaking the independence and impartiality should be ensured of the Public Prosecutor and accountability should be ensured of the AG. The President should be able to appoint his legal advisor provided he is suitable to hold that post but not the Public Prosecutor who should be appointed by the President with the recommendations of the Constitutional Council.

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Latest comments

  • 14
    0

    “The Attorney General (AG) is the principal legal officer who represents the state in legal proceedings and gives legal advice to the government. “
    The AG in SriLanka does not represent the state but to their Political masters or called Government. They are servants of the president or Prime Minister. His job is to protect crimes and corruption of the regime.

  • 6
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    Why AG even the head of police won’t comes through merit its the prez chose his own blue eyes, then go to kandy Mullas put knots job done.

  • 9
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    China’s Man in Sri Lanka

    Told us China practices decent foreign policies in this island unlike Hindians.
    However here is the Twitter message which is self explanatory:

    Chinese Embassy in Sri Lanka
    @ChinaEmbSL
    🇨🇳 Chargé d’affaires Hu Wei called on ☸️Malwathu Mahanayake:

    Chinese government and people strongly oppose any foreign country to receive the Dalai Lama in any name, because the 14th Dalai Lama is absolutely not a “simple monk” as he self-claimed.
    https://twitter.com/ChinaEmbSL/status/1615216593893744640

    It appears that we may have to apply to Chinese Embassy in Colombo for permission to indulge ourselves in hospitality, harmless social ….. activities if we invite our foreign girl friend(s)…. and of course also from Kamala.

    Come on where are our so called freedom, independence, sovereignty, …… self determination, ….?
    It seems too decent of Chinese diplomacy.

    • 5
      1

      Why what’s wrong?

      People have had slaves ……. as long as humans have been on this planet.

      Chinese have their slaves ……. we have ours.

      What if, Prabakaran was allowed to visit another country …….. wouldn’t our embassy/consulate in that country protested? ………… Sent the exact letter …… with just a change of names?


      Freeing slaves is an arduous business ……… leaders have never had an easy time.

      They’ve always considered a menace.


      Then, there are ……. self-made slaves …… whose minds: not bodies, have been enslaved ……. just ask Ranil! :))

    • 2
      3

      NV’s ranting goes on.
      Can someone please help him find the doctor he is looking for so dfesperately.

      • 1
        2

        …the doctor he is looking for so desperately

    • 0
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      “The Belt and Road Map” Project is meant to channel the exploits from Asian and African countries in dire straits to prop up the corrupt leaders back in China. Chinese contemptuously referred to Negroes as apes. It is a well known “riddle”: Q. If you sea a cobra and an Indian together which one you would kill first? A. The Indian. An Indian they meant all those who live in and around the Indian sub-continent. Hope SJ will get the message.

  • 6
    0

    The essayist logically concludes his line below…………

    ……Therefore, the role of AG goes beyond representing the Republic in courts and he will have to defend himself in the courts against the follies of the President.
    Therefore in essence he is the Lawyer of the President……….
    The culprit is not the AG BUT THE CREATION OF THE EXECUTIVE PRESIDENCY BY JRJ.

    Over the years the AG has been transformed as the Catcher of the President.

  • 5
    0

    Mark my words when the chinese control of sinhala land reaches saturation point, the rogues in saffron robes will stir the sinhala masses. against the chines like EVEN what is happening in Baluchistan Pakistan the china acknowledged all weather ally! where the local population fishing stocks are stolen by the chinese mechanised fishing trawlers and the peoples have warned the approximately 500 chinese to leave and the bankrupt beggar Pakis government cannot do anything without the chinese sayso (and the Pakis want to free the Kashmeris (free from what, no starvation, good health service positive etc). Note that the Paki government itself say that since independence Paki has been surviving from foreign aid and foreign loans that the Pakis don have the capaity to repay

  • 6
    2

    The incredible HUMBUG of the chinese and its ATHEITST embassy officials are in play. as they pay homage to the sinhala land saffron coated rogues and visit for prayers in hindu temples in Jaffna. What right do these chinese persons who have a heritage of canibalism (Mao told them kill your enemies and eat them which was then praticed) to comment about the Dalai Lama

  • 5
    5

    Sanjay looks more scared than those he is prosecuting.

    • 0
      0

      ASD
      Interesting!
      Is there an image showing the parties together for such comparison?

  • 3
    5

    What right or the decency the Chinese have to oppose His Holiness Dalai Lama making a pilgrimage to the Temple of the Sacred Tooth Relic of Lord Buddha as the titular leader of the Tibetan Nation living in exile. Chinese invaded and destroyed a unique Buddhist Culture which was of great spiritual value and subjugating the proud Tibetan people to be the vassals of the Chinese Communist dictatorship. It is the same story with the Riegurs. For the Chinese the dog meat is a delicacy while for the rest of the world would feel like vomiting. China made it a cogent policy to bribe the corrupt politicians especially of the developing world to plunder the indigenous natural wealth to plaster the Chinese Economy. United States is a living, vibrating and a thriving democracy while China is the very opposite. Hong Kong was a shining star of the free world and after becoming a Chinese territory she lost her luster. The free world must stand up and oppose the attempts by the CCP to take control of Taiwan a pillar of democracy. It is utterly contemptuous for a section among the Srilankan Buddhist community to kowtow to the whims of the Communist Chinese Government’s hegemonic ways through bribery. The Srilankan Government must facilitate and make the life time wish of His Holiness a reality.

    • 5
      2

      As much, if not more, right and righteousness than you to contest China, as it was a matter that concerned China’;s sovereignty.

      • 0
        3

        It will be very interesting to know how you do your dog steak: rare, medium or well done.

        • 3
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          hp
          Sorry I have no cookery tips to offer you.
          But please name the kitchen where you prepare dog steak. Koreans reputedly being the biggest consumers and caterers of dog meat, some Korean chef may be interested to exchange dog steak recipes with you.
          Bon appetit!

          • 0
            0

            SJ. Thank you for sharing your culinary secrets. But sorry to disappoint you; I am a vegan. His Holiness Dalai Lama is a Scholar in his own right with a great following through out the world and who is highly revered and respected by the million. Compare that with the miniscule number of China procured lackeys. China devastated half of the world by passing on COVID 19 which by right should have been named WUHAN VIRUS. China twisted the arm of Dr. Tedros the Chief of WTO for the twist. Ex-President Donald Trump was right in cutting off funding to WHO. China obstructed the Team by not granting free access to the data to pin down the origin of it because they know it escaped a Wuhan Lab where they were doing research into biological warfare.

            • 2
              1

              I have not shared any secrets.
              Do not imagine things.
              I wonder if it has anything to do with being a vegan. It is only a thought.
              *
              Say something substaniated by credible evidence, then a meaningful dialogue may be possible.
              *
              Your super scholar Dalai Lama’s visit was political. Its implications were far fetched.
              That was the issue– pure and simple.
              No amount of abuse will change that.

  • 0
    0

    I doubt we’ll ever see the likes of the late CR De Silva again. It is said that he declined the position of CJ when it was offered to him by his law college batch mate.

  • 1
    0

    Our Attorney General is expected to run with the hare and hunt with the hounds. One more reason for declaring the law is an ass. But many of our legal pundits see no contradiction here, in this land of miracles!

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