The role of the Attorney General in the pursuit of justice

by Shanie

"In a society which has long resigned itself to the belief that justice is elusive, it is heartening to come across someone who sincerely believes that justice is attainable, and devotes his life, corde et amino – with heart and soul, in the pursuit of justice. I was fortunate to encounter such a person quite early in my career, and he continues to inspire me even after his sad and untimely demise on 12th August 2007."

(June 12, Colombo, Sri Lanka Guardian) This generous reference to Mr. K C Kamalasabayson was by Justice Saleem Marsoof and is the opening paragraph in the essay he wrote in a collection of essays which Justice Marsoof co-edited in memory of this illustrious former Attorney General.At a time when moves have been made to take away, for no stated reason, the office of the Attorney- General and his department from the Ministry of Justice and bring it directly under the President, it is useful to recall the career of a former Attorney General who, in the words of Mr Selvakumaran, the Dean of Law at the University of Colombo, ‘brought credit and dignity to the office he held through his impeccable professional conduct and eminence’.

Justice Marsoof also refers to numerous occasions when the late Attorney General refused to defend public officers who had acted with corrupt or sinister motives or had yielded to political pressure in the discharge of their duties. He always did what he thought was correct, totally oblivious of the consequences, and never yielded to political pressure. In a review of a book by a former public servant, Mr Kamalasabayson himself stated that the book conveyed an important message to the present day public servant, viz. that it is not difficult for a public servant to be fearless and independent and at the same time discharge his duties and functions efficiently. Mr Kamalasabayson, on his retirement, also stated in a newspaper interview that he had enjoyed his 33 years in the Attorney General’s Department because he did not yield to pressure.

Another contributor to this collection of essays, Ms Farzana Jameel, then a State Counsel, states that in considering the role of the State in applications for judicial review, she could not help but remember the advice given her by Mr Kamalasabayson who was then her "boss" that she was not supposed to "win" every case for the State. ‘Remember’, he had stated, ‘you have to help the Judge reach the right decision. The man who comes to court may have ‘awakened’ the State to an injustice it would or could have never known of, but for the application for judicial review.

This approach to the role of the Attorney General in the pursuit of justice is also reflected in a judgement delivered by the late Justice Mark Fernando in a case brought forward by a dismissed employee of a private sector company where the Commissioner of Labour had upheld the employer’s action. In recording the appreciation of the assistance given to court by Mr Kamalasabayson, he stated: "It is abundantly clear that the Attorney General presented his arguments on behalf of the Commissioner of Labour in such a balanced, broad, thoughtful and fair manner that it reflected his concern for natural justice more than an anxiety to defend the official position and the status quo, which would have been the path of least resistance. Being imbued with a sense of absolute fair play, perhaps it was clear that the principles of natural justice must have remained supreme in him".

The role played by the former Attorney General in bringing credit and dignity to his office is also referred to by Mr Gopalkrishna Gandhi, the much respected former Indian High Commissioner in Sri Lanka, in the ‘Foreword’ to the collection of essays: "(Mr Kamalasabayson’s ) sense of what was correct in life easily extended into what was constitutional and lawful. He also showed that for ‘the correct and the constitutional’ to be integrated with life, it needed a right balance of spine (intellectual self-confidence), stamina (professional perseverance) and steadiness (emotional unnervousness). May the balance and sense of fair play that marked the life of the late K C Kamalasabayson inspire generations to come in the Law and in the larger world of human justness."

The background to the office of AG

The office of the Attorney General in Sri Lanka was created over one hundred and twenty five years ago. In many other countries, it is a political office although the incumbent by tradition exercises his powers in a non-partisan manner. In Sri Lanka, it has remained a non-political office. The Attorney General is both a legal adviser to the government and the guardian of public interests. As such, the incumbent exercises both judicial and quasi-judicial functions. That was why, as an institution or department of the government it has remained under the Ministry of Justice. When recommending the first Constitution for independent Sri Lanka, the Soulbury Commissioners stated: "In recommending the establishment of a Ministry of Justice we intend no more than to secure that a Minister shall be responsible for the administrative side of legal business, for obtaining from the Legislature financial provisions for the administration of justice, and for answering in the Legislature on matters arising out of it. There can, of course be no question of the Minister of Justice having any power of interference in or control over the performance of any judicial or quasi—judicial function, or the institution or supervision of prosecutions."

Up to 1972 when we had a second chamber, the Minister of Justice was always from the Upper House – the Senate – so that Minister of Justice was not seen to be in active politics. In 1972, with the adoption of the new Republican Constitution which abolished a second chamber, that tradition had to be dropped. The Minister of Justice, exercising supervisory powers over the Attorney General, was an active politician. Nihal Jayawickrema, in a recent contribution, argues that the tradition of non-interference in the functions of the Attorney General continued even thereafter.

Jayawickrema cites, as an example, a particular case in which he was involved: "I was appointed to the office of Attorney General that had been rendered vacant by the sudden death of its previous incumbent. One of the first files that required a decision was that relating to Ven. Devamottawe Amarawansa Thero and six others, all active supporters of the UNP, who had been arrested and remanded shortly after the 1970 general election on charges of possession of hand-bombs. The arrests had received a great deal of publicity and the new United Front Government naturally used the event to its advantage in its post-election propaganda, especially in the electorate in which he was arrested where the poll had been postponed due to the death of a candidate. On the material placed before me, no charges could be preferred against any of the suspects. There was no evidence to establish conscious possession of the explosives by any of them. I had no alternative but to immediately instruct Crown Counsel to appear in court and move for their release from custody. My decision, no doubt, caused some considerable degree of embarrassment to the new government."

Absolute need for independence

Not all Attorney Generals have, sadly, asserted their independence and professional integrity like Kamalasabayson or, like in the above instance, by Jayawickrema. But that must be restored. The removal of the Attorney General’s Department from under the Minister of Justice for no stated reason, does not bode well for the office. The Attorney General, because of the judicial and quasi-judicial functions he performs, has not only to be independent but also seen to be independent.

Jayawickrema in that recent contribution also raises another constitutional issue. In terms of the Constitution, the Attorney General’s Department has to be under a specific Ministry. In this case, it has been removed from the Ministry of Justice but not allocated to any particular Ministry that falls under the President or any other Minister. Will it now come under the Ministry of Defence, of which the President is the Minister and his brother the Secretary? After all, the Secretary for Defence has reportedly made the extraordinary statement that Sarath Fonseka will be hanged if he testifies against the state on the issue of ‘crimes against humanity’. No one, neither Sarath Fonseka nor any other, should be above the law. But the rule of law must prevail and the Attorney General and the Judiciary have to ensure that the rule of law is upheld.

The Asian Human Rights Commission, the dogged defender of people’s rights, has recently re-published the speech made by Justice K M M E Kulatunga in 1984 at a seminar to celebrate the centenary of the establishment of the Attorney-General’s Department. It was worth re-reading the concluding remarks of Justice Kulatunga: "In advising the government, (the Attorney General) has to form his opinion after considering the legal principles as well as the practical effect of his advice. This does not mean that his advice should besides being correct be somehow favourable to the government. Thus, where any question in respect of which his advice is sought has arisen out of political controversy or has political overtones, his opinion should be objective and fair to the parties affected. No doubt he must have due regard to the desire of any government to realise its legitimate aspirations and the political problems Ministers have to contend with. However, it is his duty to advise the government to act within the law in implementing its policies.

No government will lightly disregard the opinion of the Attorney-General and advise itself wrongly. If it did so, that would lead to wrong decisions which would in turn discredit it in the public eye. It may thus be true to say that in a particular situation the stability of the government may itself depend on the correctness of the opinion tendered by the Attorney-General. As such he will not rest his advice on more expediency".