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It is highly unusual—and worryingly so—that the primary gatekeeping associations of legal and judicial institutions in Sri Lanka have come together to tersely protest against what they see as an ‘unwarranted interference’ across social media in regard to the judicial and prosecutorial function in ongoing cases.

Menacing assertions against critics

In certain respects, these tensions point to the emergence of a curious trend of ‘public intimidation’, if we may term it so. Previously, the lines were clear-cut, with threats levelled at judges and prosecutors by ruling politicians being more of the sledgehammer kind, easy to distinguish and easy therefore to rebut. Now, such distinctions are far more shadowy, reflecting agendas of ruling politicians, sometimes warring with each other to boot.

These are depicted in the crossing of swords of ‘social media warriors’ with wide and inflammatory reach over their audiences. To add to this unease, a minister in the National Peoples’ Power (NPP) Government has publicly declared in an outburst which would be funny if it was not so serious that ‘the Government would retaliate with a Bruce Lee punch against political opponents, saying that ‘wearing a black cloak, national dress or saffron robes will not protect anyone.’

While this particular worthy is not known for measured political rhetoric, the menacing tone of his assertion cannot be shrugged off. In the midst of this hysteria, there is far more heat than light thrown on concerns of singular public interest. A good example is the current public (read, social media) baying for the (metaphorical) blood of the Attorney General of Sri Lanka over what his critics allege is a compromised handling of controversial prosecutions and other irregularities.

Hysteria that is not helping reasoned debate

Social media punching of the incumbent as well as his officers has become the norm, with more heat than light thrown on the questions in issue as a result. This extraordinarily adversarial back-and-forth in the media also featured a so-called ‘silent protest’ outside the state law office a few days ago while lawyers trooped out in ‘support’ of the beleaguered incumbent, who said that ‘I am not above the law and that any decision that I make can be challenged in court.’

His defenders have grouped together, across the Government and the Opposition ranks, interestingly enough, to condemn what they refer to as attempts to ‘pressure’ prosecutorial decisions. The National Peoples’ Power (NPP) Government’s Minister of Justice has also earned the ire of critics in taking a temperate position that the ‘impeachment of the Attorney General’, discussion of which is rampant across social media spaces, was not discussed by the Cabinet.

The objective of this discussion is not to go into the nitty-gritty of the cases in issue or to examine whether the state law office acted fairly or not thereto. Rather, this is to emphasise that the ‘frenzy’, engineered or not by loyal factions of the Government as the case may be, helps no one. Rather, it is distinctly counter-productive in bringing about a long-advocated accountability of the prosecutorial function.

Concerns about a ‘politicised’ DPP

This is an old debate, perhaps as old as the proverbial hills. In a reflection last year, I pointed to the fact that no office tasked with handling prosecutions has boasted a stellar record. This is particularly so since the politicisation of public service and judicial systems following the Republican Constitutions of 1972 and 1978. Documented examples in this regard are rife. In other words, this debate is not confined to the incumbent occupying the post of the state law officer.

Rather, it extends to the dualistic nature of the Office itself, which is vested with an advisory function to the Government as well as the duty of prosecuting its miscreants. A question of conflict of interest invariably arises. One solution proposed is the establishing of an Office of a Director of Public Prosecutions (DPP), envisaged as an independent office to that of the Attorney General.

Even so, the history of the DPP office does not reflect necessary attributes of independence and integrity. And given the current barrage of (shadowy) attacks being levelled at the state law office, a justifiable fear now arises: whether what will replace the state law office in handling the prosecutorial function may even be less ‘independent’ than its maligned predecessor?

Judicial conservatism in scrutinising the prosecutor

One reason why this problem has become so acute is also the reluctance of the judiciary to examine the acts of the Attorney General. Our courts have been uniformly reluctant to scrutinise the prosecutorial process. In a statement issued a few days ago, the Bar Association of Sri Lanka urged the government to ‘ensure that the Office of the Attorney General is allowed to function independently, free from external pressure or undue influence.’

It was pointed out that ‘decisions of the Attorney General are subject to judicial review, either through the exercise of writ jurisdiction before the Court of Appeal or through the invocation of the Fundamental Rights jurisdiction of the Supreme Court.’ But while that is technically the case, this judicial discretion has been rarely exercised.

Generally the Court has applied the ‘exceptional circumstances’ test, which would operate in favour of the prosecutor in ninety-nine per cent of the cases. In contrast, the global legal standard on review of prosecutorial discretion has mightily advanced from this conservative viewpoint. Some countries provide for review of prosecutorial discretion by law.

Routine violation of the sub judice principle

In South Africa, prosecutorial decisions are regularly reviewed for their rationality and legality, not only if there is abuse of process or where it amounts to malicious prosecution or misfeasance. Information in regard to those decisions is also put into the public domain. These are standards that Sri Lanka must adopt. Another perturbing feature of the ongoing controversy is the merry expression of no-holds-barred opinions in regard to ongoing cases.

These fall well within the prohibited limits of the sub judice legal principle. I say this as a liberal proponent of contempt of court laws and abiding fully by the standard set in modern jurisdictions that, as well put by courts in the United Kingdom, there must not be ‘gagging of bona fide public discussion of controversial matters of general public interest.’ That gagging must not happen ‘merely because there are in existence contemporaneous legal proceedings…’

Here, the Supreme Court has affirmed similar principles. Sub judice has been declared as a legal safeguard that cannot be used as a ‘cloak to stifle the citizen’s right to freedom of expression’ or for justifying autocratic conduct thereto (Kurukulasuriya v SLRC and Others (2021)). But this is a very different question altogether from social media adventurism that pronounces on proceedings in lower courts such as the Magistrates’ Court.

Terse statement by the judiciary

This is as if the opinion-makers are judge and jury combined. In the process, conclusions are arrived at about ‘judicial’ and ‘prosecutorial’ bias that would not be published in mainstream media due to legal constraints and the need to observe equity in commentary. Unsurprisingly, the Judicial Service Association of Sri Lanka (JSA) has issued a somewhat alarmingly terse statement pointing to ‘false and baseless’ accusations directed at judges and at the Judicial Service Commission (JSC).

The JSA has said that ‘the allegations, widely circulated on social media and other platforms, appear to be aimed at undermining public confidence in the judiciary and influencing its independent functioning.’ The confluence of positions of the JSA and the BASL appear to be the same, raising valid concerns about the motives and agendas behind these attacks.

That is a far from reassuring development for the integrity of Sri Lanka’s legal and prosecutorial institutions.