Sri Lanka's politicization of judiciary complete, says AHRC

[TamilNet, Wednesday, 02 June 2010, 10:12 GMT]
Asian Human Rights Commission (AHRC), a Hongkong-based rights watchdog, condemned Sri Lanka's president Rajapakse's "move to bring the Attorney General's Department, which is the department with the power of prosecution of all serious crimes, as well as the power of providing legal advice to the government, under the control of the president," and added that the "direct interference with the prosecution will "politicize" the function.

"[I]n relation to the cases of Tissainayagam, the journalist, and Sarath Fonseka, now a parliamentarian and the former commander of the army, and the opposition candidate in the last presidential elections we have witnessed the emergence of political prosecutions," AHRC said in a May release.

"However, in all these cases it was the duty of the Attorney General's Department to advise the government on the basis of the law as to the justifiability or otherwise of these prosecutions. However, in the future, if the prosecutions are to take place under the orders of the highest office then the prosecution function will undergo a transformation," AHRC warned.

“This is not sustainable as there ought to be checks and balances in a democracy through delegation and clear separation of powers,” Mr Jehan Perera, a human rights activist, said..

AHRC released the following 1984 presentation on the history of the office of Attorney General in Sri Lanka:

PRESENTATION OF MR. K.M.M.E. KULATUNGA, SOLICITOR-GENERAL OF SRI LANKA

Mr. Chairman, distinguished delegates, let me introduce my paper. In this conference we are concerned with the Office of the chief Legal Advisor to the Government. He represents the Government in criminal prosecutions and in civil litigation. In a particular country he may be designated the Attorney-General. Elsewhere the legal advisor may be the Minister of Justice or the Secretary to that Ministry. He may be a Cabinet Minister and designated the Attorney-General.

Alternatively he may be designated the Public Prosecutor. He may change with the Government or he may be a public servant who does not change with the Government.

However, I believe that in every country there is one thing which is common, namely, that the duties of the Chief Legal Advisor to the Government are of judicial or quasi judicial nature and that he is in the position of a guardian of the public interests.

Distinguished delegates, on the occasion of the centenary of the Attorney-General’s Department in Sri Lanka, we are happy to meet you and to learn more about the different systems you represent, for the common good and mutual benefit. That is the object.

In Sri Lanka, the Office of the Chief Legal Advisor to the Government was designated the Attorney-General in the year 1884. In the earlier part of the 19th century it was designated Queen’s Advocate or King’s Advocate.

From 1833 to 1931 the King’s Advocate or the Queen’s Advocate and thereafter the Attorney-General was a member of the Executive Council and official members of the Legislative Council and functioned as an advisor to the Governor. He also introduced government measures in the Legislative Council. That was his role in those days.

In 1931 under the Donoughmore Constitution an Officer called the Legal Secretary an Officer of state replaced the Attorney-General in. the Legislature.

The Legal Secretary and the Attorney General advised the Governor under that Constitution. The Attorney-General and the Solicitor-General with nine Crown Counsel handled Criminal Prosecutions and Civil matters. It is matter of interest that somewhere around the year 1958 the cadre of the Attorney-General’s Department increased to at about 20 - 28 and it is now 80 - 90, which reflects the increase of the volume of work.

In 1946 the Soulbury Constitution established a Minister of Justice. The Attorney-General and the Solicitor-General remained public servants. The Soulbury Commissioners observed thus:

"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."

As regards advice to the Governor-General there was 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.

As regards advice to the Governor-General in the exercise of the Royal Prerogative of Pardon the Commissioners suggested that this should be the responsibility of the Minister of Justice. The Commissioners added that:

"In view of the ease with which the duty of advising the Governor-General in these matters might be turned to political ends, we would express the hope that the Minister would hesitate to tender to the Governor-General advice contrary to the recommendation he had received from the Attorney-General, the Permanent Secretary and other non-political advisers."

Sri Lanka attained independence in the year 1948. In 1972 she became a -Republic and adopted a new Constitution. - And another Constitution was enacted for the Republic in 1978.

It is observed that none of the Constitutions adopted since l946 altered the non-political status of the Attorney-General and the Solicitor-General. The Attorney-General continued to be the Chief Law Officer of the State. His independence and the status remained unaffected. However, his functions increased under the 1972 Constitution as well as 1978 Constitution.

In the U.K. in 1912 the Attorney-General was appointed a Cabinet Minister This of course lead to some criticism on the ground that the duel status of the Attorney-General impinged on his independence. However, successive Attorneys-General in the U.K. have asserted that it is their duty to give independent advice and to safeguard the public interests. In Sri Lanka the question did not arise in that way, but during the colonial period criticism was levelled against the Attorney-General in particular cases, on the ground that he had acted under pressure or for political reasons. That indicates the vigilance exercised in that matter by the members of the public as well as members of the Bar.

In modern times, in every sphere of his functions the Attorney-General is both the legal advisor to the Government and a guardian of public interests.

In criminal, prosecutions his functions are quasi judicial. His officers are enjoined to ensure that the verdict is fair and according to law.

In civil matters he advises the Government and appears for the Government. He arranges for relief to the claimants administratively in appropriate cases. He promotes settlement of disputes between government departments and the public in appropriate cases. He also entertains petitions from the public and arranges for redress administratively in appropriate cases.

He examines draft legislation for unconstitutionality especially for inconsistency with fundamental rights and freedom. He appears before the Supreme Court in cases where breaches of fundamental rights are alleged. His right to be heard in the Supreme Court in such and other proceedings is designed to safeguard the interests of the State as well as the public.

He appears in contempt of court proceedings and in disciplinary proceedings against Attorneys-at-Law and assists the Court to reach a decision consistent with the relevant principles of law and the right of litigants as the case may be.

In applications for the issue of prerogative writs it is his duty to ensure that the correct decision is given after balancing the rights of the State and the public.

The most important powers of the Attorney-General are judicial or quasi-judicial. In the exercise of these powers he must act objectively and impartially between the State and the Subject.

In criminal trials his only interest is that the verdict should be in accordance with the law. His officers have been advised to express no views on the punishment to be imposed on an accused who has been found guilty unless the Court invites assistance on that question.

In advising the government, he 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.

Mr. Chairman, distinguished delegates, I thank you for granting me the privilege of introducing this paper and the patient hearing you have given me. Thank you.

 

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