Indictments and the equality principle

"The question now is whether the Court should adopt a more liberal approach when examining the actions of the Attorney General, thus allowing citizens a practical right to relief when actions of the Attorney General infringe the right to equality? As this columnist has discussed elsewhere in academic fora, there are comparative developments to this effect in other jurisdictions which should perhaps be taken into account by our courts."
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By Kishali Pinto Jayawardene

(September 27, Colombo, Sri Lanka Guardian) When journalists were repeatedly indicted by the Attorney General (AG) on charges of criminal defamation in the nineteen nineties and earlier, would the AG have been persuaded to withdraw indictment if citizens had written to him asking him to consider clemency on the basis that these journalists had rendered good service to the country? And what of other individuals, indicted both for good reason and for bad in recent times - would they also be entitled to this same extent of extreme graciousness, one cannot but wonder?

This is a question that has become quite relevant now given the astonishing news reported in this newspaper last week under the most apt caption 'Trial of school principal to go ahead - upright judge rejects AG's unusual plea' that the Attorney General had lodged an appeal with the Colombo High Court to withdraw indictment on purportedly 'sympathetic' grounds, filed against a principal of a leading Colombo school who had been charged with allegedly preparing forged documents and misleading the Criminal Investigation Department (CID) in relation to an investigation over a school admission.

Questions of systemic integrity

The application for withdrawal of indictment was consequent to the Attorney General informing court that the accused had regretted his conduct and had accepted a transfer to another school. In addition, court was notified that several citizens had written to the Attorney General requesting that clemency be granted to the accused based on the good services that he had rendered to the country. In this instance, the judge had rejected the application.

The question is pertinent however as to whether we could expect such rigorous standards of judicial propriety from each and every member of the Bench?

In the result, could we not have situations where such applications by the Attorney General may not be the exception but rather the norm and where such applications may be, in fact, acceded to, causing severe detriment to the already problematic functioning of this country's legal system?

These matters are graver when the question concerns not merely the withdrawal of an indictment in selected cases but also the substantial decision to file indictment or, (in the alternative), refuse to file indictment in cases where the law and the investigative material clearly calls for a contrary course of action. Courts, including the Supreme Court have been traditionally reluctant to question the authority of the Attorney General in such cases. Troubling questions of systemic integrity are therefore raised.

Judicial review of errors and omissions by the AG

An example in point is Victor Ivan v Sarath N. Silva (1998] 1 Sri LR 340) concerning a journalist's plea that criminal defamation indictments had been filed again him unfairly and arbitrarily, hence violating, interalia, his constitutional right to equality in terms of the law. The Court accepted in principle, that a decision of the Attorney General to grant sanction to prosecute/file an indictment or refuse to do so, may be reviewed by the Supreme Court. A judicial caution that actions of the Attorney General in such instances may only be within the parameters of the statutory discretion conferred upon him and cannot be arbitrary was issued.

Yet, (and disappointingly so) the judges took the view that such powers of review would be exercised by court only in very rare circumstances, such as where the evidence was plainly insufficient, where there was no investigation and where the decision was based on constitutionally impermissible factors and so on. In the instant case, this judicial power was not exercised in such a manner as to afford the petitioner any relief on the basis that whatever lapses that were disclosed were on the part of the police investigators in regard to which responsibility could not be attributed to the Attorney General. It was declared that errors and omissions by the Attorney General cannot themselves be proof of discrimination or a breach of the freedom of expression.

Comparative developments

The question now is whether the Court should adopt a more liberal approach when examining the actions of the Attorney General, thus allowing citizens a practical right to relief when actions of the Attorney General infringe the right to equality? As this columnist has discussed elsewhere in academic fora, there are comparative developments to this effect in other jurisdictions which should perhaps be taken into account by our courts.

For example, in relatively recent developments welcomed in the main by legal analysts in the United Kingdom, English judges have opined that the court would dismiss the charge in criminal matters if the applicant is able to show that the Attorney General or any of the police officers is found to have abused the process of court or had acted in an oppressive manner towards the applicant. Again, in Israel, the judges have gone even further in this regard. The office of the Attorney General in this country is similar to ours in many respects. The Attorney General represents the State in all courts and all matters including criminal, civil and administrative matters and has, among a host of other powers, the authority to institute or to stay all criminal proceedings. His/her nomination is by the Minister of Justice subject to approval by the Senate and is in general, a highly respected and professional lawyer who is expected to exercise his/her powers independently of the government.

In the early years, Israeli courts held (similarly to ours), that judges would intervene only if the Attorney General acted mala fide and clearly contrary to the public benefit. This strict standard however thereafter gave way to more liberal decision making where the court, in fact, set aside prosecutorial decisions tainted by improper motives, arbitrariness, discrimination and where there was a material or grave distortion of reason In some cases, it was even declared that there was essentially no difference between the Attorney General and other public officials, all of whom were required to act with fairness, honesty, reasonableness, without arbitrariness and discrimination.

Other jurisdictions have echoed this same liberality. In Canada, for example, expert committees have been set up to lay down guidelines for the exercise of prosecutorial discretion by the Attorney General. In addition, some African jurisdictions are increasingly emphasizing the political neutrality of the Attorney General's office as well as the need to ensure judicial oversight of the powers of the Attorney General in appropriate circumstances.

Looking anew at the AG's powers

Perhaps it is time that Sri Lanka also looks anew at the statutory powers and discretion of the office of the Attorney General. Though the 17th Amendment to the Constitution conferred a greater measure of oversight scrutiny in regard to appointments to this post, this amendment has been summarily brushed aside by the political authority in recent years. Given that presidential immunity bars any further review by the courts in this context, perhaps there is little that judges can do on the wider question of constitutional integrity.

However, at least in specific cases where the Attorney General's actions are justifiably challenged, whether this may be in attempts to withdraw indictment, file indictment or refuse to file as the case may be, we need to see the courts, (as much as the Colombo High Court did in this instance), standing fast to the principle of equality before the law. A higher level of judicial scrutiny is undoubtedly called for in this day and age.

-Sri Lanka Guardian