“It is settled in our constitutional law that in matters which concern the public at large the attorney general is the guardian of the public interest. Although he is a member of the government of the day, it is his duty to represent the public interest with complete objectivity and detachment. He must act independently of any external pressure from whatever quarter it may come. As the guardian of the public interest, the attorney general has a special duty in regard to the enforcement of the law.”
The Attorney General holds a vital position in the Sri Lankan body polity too as the chief legal officer advising the state on crucial issues relating to the law.
Simultaneously, he has a bounden duty to protect the rights of the people and advance the cause of the rule of law. In the United Kingdom Lord Denning has aptly elaborated on the definition of the attorney general as a guardian of the rights of the people
The attorney general, who holds enormous power in trust relating to criminal prosecutions has come under heavy fire recently for what the litigants called ‘alleged politically motivated acts of circumventing the rule of law’.
The question is whether the attorney general has employed spurious ways to please the political hierarchy in the country. There are numerous allegations in the House and elsewhere that cases pending before courts are withdrawn because they had no merit for such action.
In the circumstances, it is timely to explore the role of the attorney general under various political contours and influences in bigger democracies where there are many definitions of the role, and contrast it with that of Sri Lanka. In some countries, it carries Cabinet responsibilities as the chief legal advisor to the government.
The evolution of the position of Attorney General, dates back to 1243. Records from the past show that an attorney represented the King’s interests in court.
In England and Wales, it came into practical use as the legal officers of the Crown.Today, the attorney general serves as the principal legal adviser to the Crown and the Government in England and Wales. It is also a function which is held concurrently with that of Advocate General for Northern Ireland. The attorney general maintains the Attorney General’s Office and currently attends Cabinet.
Initially, the position of Attorney General had political connotations. In 1461, the House of Lords summoned him to advise the government.
In 1673, the attorney general officially became the adviser to the Crown and the representative in legal matters, although still specialising in litigation rather than advice. The beginning of the twentieth century saw a shift away from litigation and more towards legal advice. Today the sole responsibility of prosecutions lie with the Crown Prosecution Service. The Government Legal Service provides necessary guidance to the government departments.
However, both these departments come under the supervision of the attorney general.
The United States Attorney General leads the United States Department of Justice and is the chief lawyer of the federal government of the United States. The attorney general serves as the principal advisor to the president of the United States on all legal matters and is a statutory member of the Cabinet of the United States.
Under the Appointments Clause of the United States Constitution, the officeholder is nominated by the president of the United States, then appointed with the advice and consent of the United States Senate. The attorney general is supported by the Office of the Attorney General, which includes executive staff and several deputies.
Congress passed the Judiciary Act of 1789 by which, among other things, established the Office of the Attorney General. The original duties of this officer were “to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned. Additionally to give his advice and opinion on questions of law when required by the president of the United States, or when requested by the heads of any of the departments”.
Some of these duties have since been transferred to the United States solicitor general and the White House counsel.
The Department of Justice was established in 1870 to support the attorney general in the discharge of their responsibilities.
The attorney general, the secretary of state, the secretary of the treasury, and the secretary of defence are regarded as the four most important Cabinet officials in the United States because of the size and importance of their respective departments.
Having gone through duties assigned to the attorney general in two democracies in the world, we can explore the role of the Sri Lankan attorney general as prescribed.
The attorney general is the chief legal officer of the state. In that capacity, he advises the state, government departments, statutory boards and public corporations in respect of all legal matters. He or she conducts prosecutions in criminal cases and appears on behalf of the government, government departments, statutory boards and public corporations in diverse judicial fora.
The Office of the Attorney General was formally established in 1884 under British colonial rule. However, the Office of the Attorney General could be traced back to the Office of the Advocate Fiscal which was in existence towards the latter stages of Dutch rule in the country which Office continued even during the early years of the British occupation until the year 1834. The designation of this Office was then changed to that of ‘king’s advocate’, and thereafter during the reign of the Queen of England to ‘queen’s advocate’.
By Ordinance No. 1 of 1883, the designations of officers known as the ‘queen’s advocate’ and ‘deputy queen’s advocate’ were changed to ‘attorney general’ and ‘solicitor general’, respectively. The deputies to the ‘queen’s advocate’ were named ‘crown counsel’. All rights, precedents, powers, privileges, which at the passing of the Ordinance belonged to the ‘queen’s advocate’ and ‘deputy queen’s advocate’ were vested in the ‘attorney general’ and the ‘solicitor general’, respectively. The change took effect from 1st January 1884. While introducing the Ordinance in the Legislative Council, the ‘queen’s advocate’ said that the Bill proposed that the ‘attorney general’ and the ‘solicitor general’, besides having the powers exercised in England by their counterparts, should have the same rights and privileges which the law officers of the Crown have hitherto possessed in the colony.
The Ceylon Civil List stands testament to the fact that Crown proctors were outsourced by the attorney general’s department since 1932, to handle the procedural aspect of civil litigation. These appointments were then extended in 1944 to Crown conveyancers, who were appointed specifically to engage and advise in matters pertaining to conveyancing within the purview of the attorney general. Gradually, in 1952 and 1955 the first internal appointments were made to the posts of Crown proctor and Crown conveyancer respectively, whilst the outsourcing continued for the outstation courts, island-wide.
Under the Donoughmore Constitution, the provision of legal advice to the governor became the responsibility of the legalsecretary and the attorney general’s department. The institution of criminal prosecutions and civil proceedings on behalf of the Crown was the duty of the attorney general’s department. The Soulbury commissioners recommended that the functions of the legal secretary certifying Bills prior to submission for assentto the governor should be transferred to the attorney general. The commissioners recommended the appointment of a minister of justice to deal with the subjects then allocated to the legal secretary. They also recommended that under the new constitution, for some time at least, the attorney general and the solicitor general should not lose their status as public servants and become ministers and that the provision of legal advice to the governor-general should in future be a duty of the attorney general.
The Ceylon (Constitution) Order-in-Council of 1946 gave effect to these recommendations except that with regard to Bills it provided that the speaker shall consult the attorney general or the solicitor general before giving his certificate to any Bill. It was only after such certificate that the Bill could be presented to the governor-general for assent.
Sri Lanka attained independence from the British empire on the 4th of February 1948. She became a republic under the 1972 constitution. The governor-general was replaced by a president who was nominated by the prime minister and who was required to act on the advice of the prime minister and other ministers. Until 1972, the attorney general was appointed by the governor-general and thereafter by the president. The constitution of 1978 provided for an executive president to be elected by the people. Under that constitution the president was empowered to appoint the attorney general.
With the enactment of the Administration of Justice Law, No. 44 of 1973, certain powers of the attorney general associated with the criminal justice system, were conferred on the director of public prosecutions, which was an office created by that law. In practice, the director of public prosecution functioned from within the attorney general’s department and was required to adhere to the advice of the attorney general. That position was abolished in 1978, with the repeal of the Administration of Justice Law act. The 2nd Republican Constitution empowered the executivepresident to appoint the attorney general.
It is observed that none of the constitutions adopted since 1946 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 status remained unaffected. However, his functions were increased under the 1972 constitution and thereafter in the constitution of 1978.
In terms of the present constitution, the attorney general is appointed in terms of Article 41A of the constitution, on the recommendation of the Parliamentary Council and his tenure is guaranteed in terms of the Removal of Officers (Procedure) Act No. 5 of 2002.
In the UK and USA, the attorney general plays a rather significant political role, in contrast to that, of Sri Lanka. The status and the independence of the attorney general remained unaffected under the successive constitutions promulgated in 1972 and 1978.
Though in no uncertain terms the attorney general is regarded as the chief law officer of the government, the independence of the attorney general is far more vital since he has a discerning role to play as the chief law officer of the republic.
The impartiality of the attorney general is of paramount importance to all citizens. Hence the attorney general is not expected to compromise his independence before any power, either governmental or otherwise.
The attorney general, as the chief law officer of the state,
has to accomplish a far more noble duty by the people,
by discharging and dispensing justice for the greater interest of the country.
The Supreme Court recently defined the role of the attorney general to enlighten the general public on a matter of critical importance.
Overruling the preliminary objections raised in public interest litigation, the Supreme Court virtually passed strictures on the attorney general.
It stems from a lawsuit filed against a Cabinet decision regarding the ownership of tamed elephants.
The Cabinet, on March 15, approved a memorandum titled “Taking a policy decision in respect of tamed elephants where judicial proceedings and investigations are being conducted and transferring the ownership”.
The Cabinet memorandum sought the approval of the Cabinet of Ministers to withdraw all cases in which legal action was taken at present and to hand over these animals to their present owners. according to the conditions of transferring these animals.
Overruling the three objections raised by the attorney general, the Supreme Court quoted Lord Denning of the UK.
“It is settled in our constitutional law that in matters which concern the public at large,the attorney general is the guardian of the public interest. Although he is a member of the government of the day, it is his duty to represent the public interest with complete objectivity and detachment. He must act independently of any external pressure from whatever quarter it may come. As the guardian of the public interest, the attorney-general has a special duty in regard to the enforcement of the law.” [emphasis added]
Although there may be some differences in the two roles, the Supreme Court observed that these observations aptly apply to the role of the Attorney General of Sri Lanka as well.
In fact, in Land Reform Commission v. Grand Central Limited [(1981) 1 Sri. L.R. 250] this court held that the attorney-general has a duty to the court, to the state and to the subject to be wholly detached, wholly independent and to act impartially with the sole object of establishing the truth.
‘The Attorney General is vested with extensive statutory powers in relation to criminal investigations and prosecutions. Such powers are held in public trust. They must be exercised for the due administration of justice according to the rule of law which is the basis of our constitution. Any type of dictation from whatever quarter will compromise the independence of the attorney general unless such dictation is permitted by law. Any compromise of the independence of the attorney general will have a negative impact on the rule of law’, it said.
The Court further said that ‘the heart of the petitioners’ complaint is that the 1st and 2nd respondents (In this case the Prime Minister and the Minister of Wild Life and Forest Consevation) and the Cabinet of Ministers are interfering with the statutory powers of the attorney general.
‘This is a serious allegation, which if true, has far-reaching ramifications. According to Article 4(d) of the constitution, it is the bounden duty of this Court to secure and advance the fundamental rights guaranteed by the constitution. These are proceedings brought on behalf of the public at large. I hold that this Court must not allow procedural defects of the nature alleged in this matter to shackle its constitutional duty to examine the allegation of the petitioners at the leave to proceed stage. Accordingly, I overrule the objection’.
The Court ruling raises serious issues relating to the attorney general’s role in the matter. The judgement, in other words, cautions the attorney general to act according to the rule of law and protect the rights of the citizens.
In the recent past, there had been a spate of withdrawals of Court cases that became a subject of discussion in parliament.
People inevitably suggested that the government was involved in sinister moves to release acolytes that harmed the reputation of the attorney general’s department.
The more recent case where the AttorneyGeneral erred was where the former Governor of the Western Province Azath Salley came under the scrutiny of the Prevention of Terrorism Act. Salley was detained and indicted on the strength of a complaint made by three parliamentarians.
The High Court, after careful consideration of the evidence, acquitted the accused.
The accused in a cross-claim demanded compensation from three parliamentarians who complained against him for causing the arrest without sufficient grounds. The High Court noticed the parliamentarians to appear before the court in February.
Had the attorney general perused this carefully he couldn’t have proceeded with such action? Nevertheless, it leaves room for people to come to a different conclusion.–Alakeswara
(Sources-Wikipedia, Attorney General’sDepartment)
