By K.M.M.M. Jayathilaka –

The demand for a separate office for prosecutorial functions in Sri Lanka has resurfaced after the Attorney General’s (AG) recent order to release three suspects linked to the murder of journalist Lasantha Wickrematunge.

Political bias in prosecutorial decision-making has been a perennial issue in the criminal justice system of Sri Lanka. However, it caught great public attention in 2015 due to the lack of substantial legal actions in relation to the 2014 anti-Muslim riots. In the years that followed, public skepticism regarding the impartiality of prosecutions grew even more in light of the slow pace of investigations and prosecutions on the 2019 Easter Sunday bombings and grand corruption cases.

A COMMON ISSUE IN COMMON LAW JURISDICTIONS

Political meddling with prosecutions is not an issue unique to Sri Lanka. It is encountered by all the Commonwealth nations because, under the common law tradition, prosecutors sustain a subordinate position to the political branches of the government.

In common law jurisdictions, the AG performs dual roles by serving as the legal advisor to the government and the chief prosecutor on behalf of the citizens. In this context, a conflict of interest emerges when government officials are subjected to criminal proceedings since the AG, who is tasked with defending state actors in one capacity,  is required to enforce accountability measures against them in another. This split allegiance allows the public to harbor suspicion about the impartiality of the prosecutorial process, which negatively affects public confidence in the criminal justice system. In addition, selective prosecution occurs because of the political connections innate to the office of the AG and the common law norm that shields the prerogative power of prosecution from judicial scrutiny. As a result, political factors dominate the prosecutorial decision-making process instead of factors such as fairness, public interest, and established legal criteria, thus causing deterioration of the rule of law.

To address these risks, many Commonwealth nations have sought to separate the role of chief prosecutor from the office of AG and establish a dedicated institution for prosecutorial functions. This transition has been highly effective in ensuring impartiality, efficiency, transparency, and accountability in criminal prosecutions.

Calls for a similar transformation in Sri Lanka have grown louder over the years, notably receiving explicit recognition in the International Monetary Fund’s 2023 report, “Sri Lanka: Technical Assistance Report—Governance Diagnostic Assessment.”

STRUCTURAL INDEPENDENCE VS FUNCTIONAL INDEPENDENCE

Efforts of Commonwealth nations to insulate the prosecution service from political pressure reveal a crucial truth: the mere establishment of a dedicated office for prosecutorial functions does not guarantee genuine autonomy. It is imperative to implement strong measures facilitating functional independence, along with structural separation, to avoid the independence of the prosecution service being symbolic. This key aspect has been largely overlooked in the ongoing discussions about separating the role of the Chief Prosecutor from the AG in Sri Lanka. Consequently, there is a risk that this new office could meet the unfortunate fate that befell the Director of Public Prosecutions, which existed from 1972 to 1978 in the country.

Based on the experiences of the United Kingdom and Ireland, which have set the trend of establishing a separate office for prosecutorial functions, three key areas can be recognized as essential to ensure the operational independence of this new office.

Relationship between the AG and the Office of the Public Prosecutor (OPP)

Owing to its inherent political affiliations, the AG often serves as a conduit for political influence over the prosecutorial process. Therefore, the nature of the relationship between the AG and the OPP is a crucial factor in determining the extent to which prosecutors can perform their duties impartially.

The AG in the UK holds supervisory power over the Crown Prosecution Service (CPS). This oversight encompasses three aspects: financial management to optimize the CPS’s use of public funds, human resource management to maintain professional standards among the staff, and case management to ensure prosecution policies and procedures are fair, consistent, and in the public interest. This oversight does not extend to control the individual prosecutorial decisions except in matters involving national security concerns. However, there have been instances in which this power was used to steer prosecutorial priorities indirectly, as exemplified in the investigations into the ‘Cash-for-Honours’ and BAE Systems corruption scandals, which concluded without any prosecutions.

In Ireland, the head of the Office of the Director of Public Prosecutions (ODPP) and the AG share a consultative relationship. The AG’s role is mainly to provide guidance to the director, who ultimately retains the discretion to accept or reject these recommendations. Consultations between the director of the ODPP and the AG are generally limited to flaws in the criminal justice system exposed by prosecutions, legal reforms that impact the functions of the ODPP, and matters concerning terrorism, genocide, official secrets, and armed conflicts. The AG does not exercise any form of control over the ODPP. Instead, the director, who is a politically neutral public servant, holds complete authority over both the administrative operations of the office and the individual prosecutions. This arrangement provides a solid assurance of the freedom to execute prosecutorial responsibilities without any unwarranted intervention.

Accountability arrangements

The accountability of prosecutors is a necessary corollary of their independence. The autonomy of the prosecution service and the discretion granted to the prosecutors should be counterbalanced by accountability mechanisms to curb the risk of abuse. Accountability is typically exercised through oversight by the political branch of the government (the executive or the legislature), the judiciary, and the public.

The legislature generally oversees the operational and fiscal management of the prosecution service. The judiciary scrutinizes individual prosecutorial decisions such as charging, refraining from charging, discontinuing cases, or engaging in plea bargaining because only the judiciary possesses the authority to reverse or overrule such decisions. Therefore, any mechanism that holds prosecutors accountable to an entity outside the judiciary concerning individual prosecutorial decisions may be perceived as an avenue for undue pressure rather than genuine oversight.

While both the UK and Ireland adhere to this framework, there are subtle differences in their approaches to legislative oversight that have significant implications for prosecutorial independence.

In the UK, the director of the CPS is mandated to submit an annual report to the AG detailing case management statistics and priorities, human and financial resource management, and policy and legal developments. In their capacity as a government minister, the AG submits these reports to the Parliament and is answerable for inquiries regarding the administrative and financial aspects of the CPS. While the AG can respond to parliamentary questions regarding individual prosecutorial decisions, the Parliament is cautious about interfering in prosecutorial matters. This accountability structure, which places the AG, who is a political appointee with ministerial responsibilities, as an intermediary between the prosecution service and the legislature, creates a pathway for indirect political interference, thereby compromising the perceived and actual impartiality of the prosecutors.

Conversely, in Ireland, the director of ODPP holds direct accountability to the legislature. This accountability is restricted to financial and administrative affairs. The director must justify the expenditures and operational management of the ODPP to the Dáil Committee of Public Accounts, but this scrutiny excludes any probe into the prosecutorial choices related to individual cases, which affirms that the prosecutorial process remains insulated from political influence.

Both countries employ analogous strategies to facilitate public oversight of the prosecution service, which is essential for maintaining public trust in the integrity of the prosecution process. Information on the administrative and financial affairs of the service is readily accessible on their official websites through annual reports, prosecution policies, and guidelines. Additionally, under their respective legislations governing the right to access information, the public can request records related to the general administration of the prosecution service; details pertaining to individual cases are usually exempted from disclosure. Nevertheless, both countries provide schemes that enable the victim or their close relatives, if the victim is deceased or minor, to access information on the decisions not to prosecute or to discontinue a case and seek a review of such decisions.

Appointment, tenure, and removal of the leadership of the prosecution service

The procedures regarding the appointment and removal, as well as the tenure of the head of the OPP, are often exploited to ensure political subservience within the prosecution service. Therefore, these aspects must be carefully calibrated to achieve the right balance between ensuring the democratic legitimacy of the mandate of the head of the OPP and depoliticizing the prosecution service.

In jurisdictions with the executive model of prosecution service, such as Sri Lanka, since the president or the king has the final and formal power to appoint and remove the head of the OPP, the selection and dismissal processes should be objective and transparent. To that end, professional and non-political experts should be involved in the selection process to ensure the competence of the leadership and avoid political favoritism.  Moreover, regarding the removal, the head of the OPP must be afforded a fair hearing, and the grounds for dismissal must be explicitly established by law to prevent arbitrary terminations. Further, the head of the OPP should have a fixed and non-renewable term to preserve the stability of the position and to prevent political manipulation of the prospect of reappointment.

CONCLUSION

A Public Prosecutor’s Office is a long-overdue necessity to restore the rule of law and public trust in the criminal justice system in Sri Lanka. Since the time for half-hearted measures has run out, the government must prioritize the operational independence of the new institution along with its structural autonomy to ensure that this reform goes beyond being merely a cosmetic change. This requires carefully defining the relationship between the AG and the OPP, implementing robust accountability mechanisms without jeopardizing prosecutorial independence, and enforcing transparent and impartial appointment and removal processes.

*The author holds an LL.B. from the University of Peradeniya in Sri Lanka and is a Queen Elizabeth Commonwealth Scholar pursuing a Master’s degree in Criminal Justice Administration at the University of Malaya in Malaysia. Her research interests include financial crimes and criminal justice administration.