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In the past 2 years, a large number of corruption cases have been halted or withdrawn by the AG citing lack of evidence even though the cases were instituted during the previous government by the then AG who is the present Chief Justice, on the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 21^st 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.