According to a report in the Daily Mirror newspaper today (May 4, 2010) there are moves to bring the Attorney General’s Department under the direct control of the president. A gazetted notice to this effect is expected to be released soon. The exact meaning on how the department is to be brought under the president is not yet clear. However, it is clear that this 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 will violate the very notion of the institution of the Attorney General, as it was understood within the legal framework of Sri Lanka.
However, the move comes as no surprise. The very nature of the absolute power concept contained in the executive presidential system of Sri Lanka incompatible with the independent functioning independence of public institutions.. Absolute power dictates that all institutions be subordinated to the will of the absolute ruler.
Since 1978 the institution of the Attorney General’s Department has been subjected to serious undermining. This has been documented by observers and human rights organisations in considerable detail. However, despite of this undermining the institution has remained an independent entity and to a greater degree the officers of the institution have tried to maintain the old traditions which go back to about 125 years. The previous attempts to undermine the institution have seriously damaged its credibility and particularly the office of the Attorney General himself has lost public confidence.. However, this new move will damage the institution substantially and above all it will damage the image of the institution as it will be seen as one directly controlled by the executive president.
The direct interference to the prosecution function by this takeover would be that this particular function will be politicised. It was understood in the past that the prosecution function will be based strictly on the considerations of law. When the inquiring officers from the police investigate a crime and hand the file over to the Attorney General’s Department it is the duty of the department to examine as to whether, in terms of the law, there is a case to prosecute, and, if such a case exists to proceed accordingly. The exercise of prosecution in this manner meant that this function would be exercised purely on the basis of legal criteria respecting the equality of all before the law. If the law requires a person to be prosecuted he or she will be prosecuted and if the evidence is insufficient there will be no prosecution on the basis of any extraneous considerations. However, if the department is under the president it will have to take orders from his office on matters of prosecutions. This will be particularly so in terms of political opponents of the government and orders of the higher office will have to be obeyed.
In recent times, particularly in 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. 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.
There are political systems of that nature where the executive office decides that for reasons that are convenient to the executive as to whether a case should be prosecuted or not. In such instances the considerations will not be purely one of law but also other considerations will bear on the issue. Particularly in the context of Sri Lanka where political antagonism is used to persecute opponents, the rising of many cases for political reasons can be predicted. The victims will be those who are directly involved in the opposition or their supporters and those in the media civil society organisations that function as critical voices relating to matters of concern to society.
The second important implication of the presidential takeover of the Attorney General’s Department would be the misuse of the functions of non-prosecutions or nolle prosequi, which is a prerogative of the Attorney General. The Attorney General has the power to withdraw a prosecution at any stage or to decide non prosecute even where there are legal reasons to proceed, on the basis of special considerations. On these issues, the Attorney General is not obliged to give reasons. The Supreme Court in some cases has postulated that in such matters the Attorney General has to use his discretion within proper legally justifiable criteria.
However, when orders from the highest office have to be obeyed prosecutions can be withdrawn, particularly if, in these prosecutions, persons who are of the government or its supporters are the accused. For example in actions relating to corruption these may be withdrawn if the accused is a government politician or a person in whom the government has some interest. Similarly in cases of political violence and other instances the prosecutions may be withdrawn for political expediency.
Of course it may not only be for political reasons as the government can also use their powers to withdraw other cases in favour of the persons in whom the government has some interest. The use of a pardon for a person convicted a murder charge 9 a government Politians wife) is quite well known. This kind of abuse can become a frequent issue and once the facility exists it is quite natural that many persons will use their political influence in order to have prosecutions withdrawn. Particularly in human rights related cases involving torture and those of extrajudicial killings and the like, in the future the possibility exists that the case may be withdrawn if the accused has sufficient influence with office of the executive president.
On the issue of being an advisor to the government the Attorney General will have less freedom to give such opinions purely on the basis of law when the department is directly under the control of the executive.
Furthermore, contrary to certain comments that this take over is being done for administrative reasons there is no reason to take the department under the control of the president purely for such purpose. The reason for such a political move has to be political.
Particularly on matters such as amendments to the constitution and legislation it is quite likely that the office of the president would not want to hear objections to any move on the basis of law from a department that the president himself controls. Thus, the capacity to give independent opinions on issues will be seriously hampered. In that manner the benefit to the public of having the Attorney General’s views on legal issues will also be lost.
In a country were the rule of law system is already very seriously damaged, this move may destroy what might remain of any such system. Constitutionally this move will affect the entire issue of the separation of powers because in the exercise of the independence of the judiciary the existence of an independent Attorney General’s Department is essential.
When the officers of the department come directly under the president these officers will also be disqualified for appointment as judges in the future. At present attorney generals could be appointed as Chief Justice directly because of the position that they hold in the official protocol system. However, once the department is totally under the control of the president it is unlikely that the public would have little confidence in any kind of independence in person appointed from the department. Once the independence is lost, in real terms or even in the public perception the appointment of such officers to the Supreme Court or the Appeals Court will be highly damaging to the notion of the independence of the judiciary. Former employees of the chief executive being appointed to the Supreme Court will naturally severely damage the image of that court.
Under these circumstances a public debate on this issue is essential and the public does not take interest at this stage it may have a lot more to lose in the future.
