Independence of the Attorney General and the Public Interest

by Shanie
Courtesy: The Island

(July 10, Colombo, Sri Lanka Guardian) Questions have been raised in Parliament about the conduct of some Judges. Judicial independence is the cornerstone of a democratic system based on the Rule of Law. Over the years, the Sri Lankan Judiciary has enjoyed a well-deserved reputation for adherence to traditions of independence and impartiality in the dispensation of justice. It is therefore a matter of regret that there is now some disquiet for the conduct of Judges to be questioned and there is even talk of some of them being impeached.It will be a sad day for the country if that happens and we trust no room will be allowed for such a necessity. Judges must not only be independent but be also seen to be independent. Part of the problem is that political leaders seem to exert enormous pressure in judicial cases that have clear political overtones. Presidential immunity that results in the open violation of constitutional provisions makes the task of the judiciary even more difficult.

Coupled with the pressures on judicial independence has been the move to take the Attorney General's Department away from the Ministry of Justice and bring it directly under the President. The Attorney General is the chief public prosecutor and guardian of the public interest and the Rule of Law. Even in countries where the position is a political one, the Attorney General is required to be independent. In UK, for instance, the Attorney General is a member of the Cabinet but, by tradition, does not attend cabinet meetings unless his legal advice is required. In Israel, where he is a public servant like in our country, a couple of years ago the Attorney General prosecuted the Minister of Justice on a criminal charge and had him convicted. Even the President and Prime Minister were subject to investigation by the Attorney General for prosecution. Like our Judges, the Office of the Attorney General has over the years enjoyed a healthy reputation in our country. As this column has noted before, we have had many Attorneys General in the past who brought credit and dignity to the office. That is why the present move of bringing the Attorney General's Department under the President seems to spring from a political agenda.

The Friday Forum is a group, to use their own description, 'of public spirited persons wishing to contribute to the future development of Sri Lanka within a framework of democracy, social justice and pluralism.' The Forum last week issued a statement, signed among others by Bishop Duleep de Chickera, Jayantha Dhanapala, Prof. Arjuna Aluvihare and Chandra Jayaratne, expressing concern over this government move. Unfortunately, this statement does not appear to have received the newspaper publicity that it deserved. We therefore make no apology for devoting the space of this column to reproduce almost the whole of the statement.

"One of the key areas of concern of the Friday Forum is the preservation of the integrity of independent institutions. It is clear that the proper functioning of those institutions, such as the independent commissions recognized by the Seventeenth Amendment to the Constitution, is essential for democratic governance and to preserve a democratic way of life for the people.

We have noted with concern the current status of the Attorney-General’s Department (AG’s Department) consequent to the Gazette Extraordinary No.1651/20 of April 30, 2010 on the allocation of subjects to various ministries. The AG’s Department, which has traditionally come under the Ministry of Justice, finds no mention in the Gazette notification either under that ministry or elsewhere. The necessary implication under Article 44 (2) of the Constitution is that as an unallocated subject or function the department automatically comes under the purview of the President. So far, the government has neither confirmed that the AG’s Department has come within the purview of the President nor officially disclosed the reasons for changing the long standing convention affiliating the Department with the Ministry of Justice.

That in a democracy, the Attorney-General should not only function but must be seen to function in an independent manner cannot be emphasised more. The Supreme Court of Sri Lanka has, in no uncertain terms, recognized and affirmed the independent role of the AG (Land Reform Commission v. Grand Central Ltd. [1981] SLR 147).

The wide remit of the AG

The AG is the custodian of the Rule of Law and of the public interest in a democracy. The functions of the AG must always be informed by no other factor or consideration than the upholding of the public interest and the Rule of Law. Even in countries where the Attorney-General is a political appointee, there is an expectation that the holder of that office must act independently of the Executive, especially in prosecutorial functions, because to do so otherwise would negate the preservation of the Rule of Law and the public interest.

If the Attorney-General, in discharging the functions of office, provides legal advice to the government or engages in the prosecutorial function in a non-independent manner, moved more by political and partisan considerations, the Rule of Law is defeated and the public interest stands desecrated.

The AG is also the head of the Bar—not only of the Official Bar as one would think, but of the entire Bar. At ceremonial sittings of the court, the AG sits representing the entire Bar. As such, it is the AG’s duty to protect the integrity of the legal profession. It also follows then that the AG has to ensure the protection of judicial independence which is indispensable to the proper functioning of the Bar. If the office of the AG itself is not independent then those objectives cannot be achieved.

The appointment and removal processes of the AG under the current law confirm the independence of the office of the AG in Sri Lanka. The appointment of the AG falls within the 17th Amendment to the Constitution. The President has to obtain the approval of the Constitutional Council to appoint the preferred nominee. The removal of the AG has to be done under terms of the Removal of Officers (Procedure) Act, No. 5 of 2002. Accordingly, the AG holds office during good behaviour (as opposed to at pleasure) and can be removed only by Parliament on specific grounds after inquiry.

Prosecuting the political dissidents

Over the past decades, the politicization of the Office of the Attorney-General has been observed with alarm. We have watched successive Attorneys-General go before international forums and defend the position of the government of the day, even when doing so defeated the rights of the people. We have watched charges against political dissidents expedited and charges against the powerful dropped or delayed.

In this post-war era, where public expectations of the State’s commitment to the Rule of Law are very high, and where the restoration of law and order is viewed as an indispensable element of the development process, it is imperative that the public has confidence in the office of the Attorney-General.

Therefore, we urge the government to assure the public of the independent status of the Attorney-General. At a minimum, we urge that the Department be affiliated with the Ministry of Justice as was the norm. Ideally, now that constitutional reform is again on the political agenda, we propose that the AG’s Department be brought under Article 52 (2) of the Constitution so that it is treated on par with the Departments of the Auditor General and the Elections Commissioner, Offices of the Parliamentary Commissioner for Administration (Ombudsperson), the Secretary-General of Parliament and the Secretary to the Cabinet of Ministers, which means that it is no longer treated as a department of government.

We urge the incumbent Attorney-General to heed public concerns and take every possible measure to demonstrate to the public that he is guided only by the Rule of Law and the public interest.

We make this earnest appeal in a spirit of constructive engagement having as our sole objective the interests of the country."

The drama outside the UN

The drama that is being enacted over the past few days outside the UN's Colombo office has brought little credit to our country. Thanks to TV coverage we saw a mob on the first day, led by a cabinet minister, laying siege to the UN office. The TV coverage belied the government statement that it was a peaceful protest. We can only conclude that the mob had the blessings of the political establishment. Since the events of the first day, Wimal Weerawansa is now reportedly on a fast unto death. We have had such dramas before. It was only one LTTE cadre, who the UTHR described as a murderer of so-called 'Tamil traitors', who fasted unto death over twenty years ago protesting against the Indian Peace Keeping Force. All the others who engage in such stunts have managed to avoid 'unto death' by some face-saving formula. Time will tell about our present hero.

But the whole drama is a blot on our country. Our UN representative Palitha Kohona is currently heading a committee that is investigating human rights violations by Israel. We have in the past also supported UN investigations into human rights violations and war crimes by many other countries. We who justifiably protest at the double standards adopted by the super powers must not ourselves be guilty of double standards.