When the Executive President made appointments to the Court of Appeal and the Supreme Court, ignoring the constitutional requirements that the selections be made by the Constitutional Council, he clearly ignored the advice of the Attorney General.
The Attorney General had advised, months ahead, that all appointments that come under the 17th Amendment must be done through the Constitutional Council. The Attorney General advice to the government on this matter has been well publicised and is known to the whole nation. The President has neither reputed this advice nor explained why he chose not to follow it. The highest legal officer in the country has been ignored and humiliated.
Neither the rule of law nor the independence of the judiciary can survive when this type of neglect and bypassing takes place. The Attorney General is the Chief Legal Advisor to the government and ranks in precedence in the legal sphere to the Chief Judge of the Highest Appellate Court. He may communicate directly with the president, ministers and head of departments. He is the head of the Bar and has precedence over all Presidents’ Counsel. The Attorney General’s Department was established in 1884 and it is the boast of this department that it has long established traditions of playing a pivotal role within the legal system of Sri Lanka.
However, the President’s action of completely ignoring the Attorney General has been preceded by other actions that have brought down the authority and the prestige of this important institution. We quote below from the book, Disorder in Sri Lanka, by former Supreme Court judge K.M.M.B. Kulatunga, who was also a long time member of the Attorney General’s Department and who rose to the post of Acting Attorney General:
No Government will lightly disregard the opinion of the Attorney-General and advise itself wrongfully. 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 mere expediency.
(Attorney General as advisor to the government and as guardian of public interests)
The role of the Attorney General
It has been our experience that every administration wishes the judgements 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 judgements which have gone against the State. When I was Acting Attorney General I was asked by the President whether the Supreme Court could review a Cabinet decision and whether a particular judgement was right. I sent him a letter defending the Supreme Court Judgement, in the context it was given. Perhaps the Attorney General is no longer free or strong enough to advise the Executive. But this will not give a licence to Executive or Members of Parliament to make insinuations against the judgements of the court or to offer advice to judges at public functions as to how they’ may discharge their duty.
(Independence and dignity of the judiciary)
I have observed a gradual decline in the independence of the officers of the Attorney General’s Department. They are unable to tender correct advice to the State for fear of incurring the displeasure of the executive. State officers do not appear to accept Attorney General’s advice. The cause of this situation is the fear psychosis created by politicisation. Police officers are subject to political interference. They are not being trained in scientific methods of criminal investigation. Some of them are skilled in unlawfully detaining suspects and torturing them. Recently the police applied to be given the power to detain a suspect for 72 hours. To my knowledge no police officer who has been ordered by the Supreme Court to pay compensation for torture has been punished. On the other hand, a recent judgment of the Supreme Court has approved promotion of such officers.
(Functioning of the judicial system (administration of justice) in Sri Lanka)
The damage done to the Attorney General’s Department by the persistent ignoring of the Attorney General’s advice on the all-important issue of the 17th Amendment to the Constitution is irreparable. While society at large will see that the department has been thoroughly ignored by the all-powerful Executive President, the demoralisation that will follow to the members of the department will also be enormous. The unscrupulous ones will look forward to making compromises with the powerful politicians to enhance their own personal situations.
However, under these circumstances the Asian Human Rights Commission congratulates the Attorney General for offering the correct advice to the government and parliament on this matter and hopes that the department will fight to retain its integrity as the highest legal office in the country.
