From Welikade to Mutur and Pottuville

Whither the office of the Attorney General?


By Kishali Pinto Jayawardene

The office of Sri Lanka’s Attorney General has been subjected to the tug and pull of political pressure from many decades back. Some specific instances include the actions of the Attorney General in the Richard de Zoysa case where the country’s chief law officer was severely castigated for refusing to take steps against the police officer identified by de Zoya’s mother as having been responsible for the abduction of her son. (see Weerakoon, Batty, (1991) ‘The Attorney General’s Role’ in The Extra-Judicial Execution of Richard de Zoysa, Star Press, published by the author, at page 13).

This analysis also examines in specific detail, the manner in which Parliament had been misled in this context as a result of a report presented by the then Attorney General to the then Minister, Justice (ibid, at page 17). Another instance is the role of the officers of the Department in covering up the inquiry into the massacre of prisoners at the Welikada prisons (see “From Welikade to Mutur and Pottuvil: A Generation of Moral Denudation and the Rise of Heroes with Feet of Clay’ (2007) Special Report, No 25, University Teachers for Human Rights (Jaffna) Sri Lanka).

Negation of the theoretically independent post

A former Acting Attorney General who went on to become a member of Sri Lanka’s Supreme Court has indeed pointed out that the office of the Attorney General has always been under threat from the political executive, despite the theoretical independence with which it is traditionally cloaked.

As observed; “It has been our experience that every administration wishes the judgments of the court to be in its favour. Perhaps we cannot fault politicians for this, But the Attorney General should be able to advise the executive and explain the legal basis of most judgments which have gone against the State. A?a??A?.Perhaps the Attorney General is no longer free or strong enough to advise the executive” (Kulatunge, KMMB (2001) ‘Disorder in Sri Lanka’, Gunasena Publishers, Colombo, at page 24).

Is there a generic form of antabuse

The attempts made at rectification by the 17th Amendment

It must be fairly said that at times, the holders of the office of Attorney General in this country have attempted to perform their duties according to law and as justly as possible but have been impeded by political constraints, though perhaps a newspaper column may not be the approriate forum for the specific discussion of these instances. The point is however that it was precisely due to these political influences that the office of the Attorney General was constitutionally sought to be insulated from political pressure by the 17th Amendment to the Constitution. Thus, the nomination had to be first approved by the Constitutional Council (CC) while the removals procedure was elevated to that of appellate court judges by subsidiary legislation passed consequent to the 17th Amendment.

However, for the past year and more, this important vetting task performed by the CC has broken down due to the CC not being constituted in its second term owing to an unconscionable negating of the 17th Amendment by the Presidency and Parliament. Though the mater has been referred to firstly, the Court of Appeal in a series of petitions and secondly, to the Supreme Court, it does not appear that the cases have reached any measure of finality. In the interim, the current Acting Attorney General who should in all respects be confirmed in his post, continues to function in an acting capacity.

Need for an independent public prosecutor?

From a different perspective and one which relates to the substantive nature of the office, arguments have been long prevalent that the separation of the public prosecution function from the Attorney General’s Department is needed. Indeed, a Public Prosecutor’s Office had been recommended as far back as 1953 when the Criminal Courts Commission advised the creation of such an office (Sessional Paper XIII of 1953). As stated by this Commission, serious weaknesses in the process of investigation on the part of the police meant that the intervention of a legal authority in this regard was called for. It was envisaged not only that such a legal authority would have the duty of giving counsel but that the police would be under a legal obligation to report cases to him/her whereupon he/she would be able to take over the conduct of the prosecution. The guidance of “trained lawyers with the ability to brush aside inessentials and drive to the heart of the case” was thought to be desirable.

The Director of Public Prosecutions

It was consequent to this recommendation of the Criminal Courts Commission that the office of a Director of Public Prosecutions (DPP) was created by the Administration of Justice No 44 of 1973. The office of the DPP was abolished consequent to the change of government in 1977 and the Administration of Justice No 44 of 1973 replaced by the current Code of Criminal Procedure Act, No 15 of 1979 (as amended).
Yet, however estimable the intention was in the creation of the office of the DPP, there is no doubt however that this office was also directly subject to political pressure during its existence. The creation of such a post in today’s highly politicized environment attracts no little dangers; indeed it may be feared that the proposed cure may be proverbially worse than the disease.

Realising the very minimum

Whatever may be the positive and negative arguments towards a radical restructuring of the office of Sri Lanka’s Attorney General, there is little doubt that there would be any movement on this score until the very minimum of constitutional appointments is realised. For that, the rejuvenation of the 17th Amendment is imperative and the need for a peoples’ movement on this basis is now exceedingly great.
The political executive must and should be shamed towards observance of the minimum of constitutional governance in this country. We cannot stand for anything less, even notwithstanding a war which, like the priestly cassock, is sought to be used sometimes to cover a multitude of sins.

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