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The Sunday TimesNews/Comment

23rd, March 1997



Strengthening the independence of AG

By Mudliyar

Recent articles in the Sunday Leader and the Ravaya about the manner in which a file relating to the brother in law of a senior officer in the A.G's department was handled by him brought into focus a number of matters which were hitherto jealously guarded from the public.

The Attorney-General's functions are quasi judicial and therefore are sacrosanct. The Attorney-General has been given the power by the legislature to take actions which affect the life and liberty of the subjects. For a number of years the public never questioned the decisions of the Attorney-General as no serious disputes arose about decisions taken by him.

The first dispute over a decision taken by the A-G came to light when the tabloid 'Ravaya' highlighted the order for discharge of a retired Senior Superintendent of Police charged with rape of a domestic servant. The allegations made by Ravaya against the AG was over the decision to discharge the accused. The criticism was based on a premise that the retired SP was a supporter of the UNP and the then President D.B.Wijetunga. It was contended that the UNP politicians interfered with the A.G's Department to compel it to give directions to the Magistrate to discharge the accused.

It is my candid view that whatever aspersions were cast upon the AG' s Department the decision was not motivated by political and other reasons.

The BASL protested loudly but when it was revealed that the file went through the hands of Upawansa Yapa, the Bar became silent. It knew that even if the decision was made by mistake it would have never been made at the behest of a politician. The evidence that was recorded by police about the incident was vague and did not satisfy the scrutiny of state counsel who went through the I.B extracts carefully.

However, later due to public pressure the AG had to take up this case again. The evidence of the prosecutrix that was led before the Magistrate was weak. The Magistrate was in haste to commit the accused. It is unfortunate that the accused died before the trial could begin at the High Court.

My impression was that if there was a trial the accused would have been acquitted in the High Court. The AG was divested of its responsibility of discharging the accused against whom there were little evidence for indictment in the High Court.The AG used to discharge the accused on applications made by counsel and interviewing them. The AG fearlessly expressed his views and decisions were taken on the recommendations of various state counsel and supervising officers and then having fully satisfied himself that the trial was a waste of time and public funds, the AG discharged the accused.

Due to various reasons including the long delays some Magistrate's commit the accused to the High Court, even with flimsy and vague evidence. If the AG abdicated his responsibility given to him by the legislature it would compound the problems of laws' delays. The High Courts will be full of indictments without sufficient evidence. I believe with the present AG this problem has got eased out as he has acted purely on the advice of the head of the criminal department, C. R. De Silva, who was recently made a President's Counsel. Upawansa Yapa and Mr. De Silva has discharged their responsibility without fear or favour and have earned the plaudits and encomiums of the Bar.

Mr. Yapa had appeared for the prosecution in a number of criminal defamation indictments filed by the AG.

Some politicians in power assume that they would reign forever. They could never accept criticism by anyone, specially the press.

The malady afflicts all and sundry. When out of power they are defamed in the most derogatory terms. These fallacious stories would even arouse the wrath and anger of those who tend to think of them kindly for any service they did for the country. But they themselves are silent like cats. In power if any one dare to say anything which is extremely mild, the police and the CID are dispatched to harass them. The AG is compelled to file criminal defamation even though there is little evidence for defamation. It is unfortunate that we did not have an AG who would tender his resignation when his advice is not followed.

When these cases came up for trial, the then the senior most prosecutor, Mr. Yapa, was requested to prosecute. In defamation cases filed by heavyweights like J. R. Jayewardene and R. Premadasa during the UNP regimes, Mr. Yapa had always compromised and settled the matter with an apology, published in the papers.

Mr. Yapa could see clearly the trial itself would be more defamatory of the complainant than the impugned article. Dirty linen would be washed in public. The papers would publish and give slant to the evidence in such a way to bring out more sordid side of the story. After the initial anger the politicians who are mature realise and relent.

Be that as it may. The Attorney-General took an extraordinary step last week to convene a press conference to explain matters over certain comments made by journalists. This I believe is the third time the AG convened a press conference to respond to a story which according to him had been distorted by the press. The first news conference was convened with regard to the case of rape where a senior retired police officer was accused of raping a domestic servant under 14 years of age.

In the old days the crown counsel acted as priests in a temple of justice. The state always advanced the arguments which might have favoured the accused in an appropriate case. To help the court give the right verdict in an appropriate case, the prosecution would place before court even evidence which were not in favour of the prosecution.

The state counsel is expected to be extremely circumspect in addressing court. He is not expected to use words that may in any way lower the estimate of the department or a court.

A few years ago, G.R.S.Silva, a senior puisne judge of the Supreme Court was sitting as a commissioner of Assizes in the Kandy district. A young crown counsel was prosecuting before him. This was a case in which a number of people were murdered and the defence was that the accused were taking some kind of drug like ganja and they were intoxicated to such an extent they did not know the result of their actions. The crown counsel asked one of the witnesses whether at that time the accused was very high. The Senior Puisne Judge at once turned round and told the crown counsel, "Mr. crown counsel what is the word you used? You used a word that should not be used within the hallowed precincts of this court."

The crown counsel was taken aback but later realised that the Judge had heard the word 'high' as 'tight' and did not want the crown counsel to use the word tight. When the crown counsel corrected and said he used the word high he was permitted to continue with the trial. The Judge was extremely careful that the counsel on both sides used the best possible language in court. State counsel were often told that they ought to be more learned than witty, more reverend than plausible and more advised than confident.

But today even the high officials of the state departments admit the standards have deteriorated. One of the reasons they attribute to the lowering of standards was the number of commissions that were sitting. At these commissions some junior state counsel prosecute, lead evidence and ask the strangest questions.

It is also a matter of regret that no one, tries to correct these state attorneys.

With these exposures and the AG being so concerned about the public perception of the department that no such allegations be made against any of its officers, the lawyers of this country are more than convinced that the AG's Department should be a completely independent organisation.

The allegation that the office of Attorney General who is the chief public prosecutor is being used by the government to prosecute political enemies with the help of a partial police is becoming more and more common place.

It was not long ago that in a case where a certain parliamentarian was accused by his political opponent of committing murder, the A.G's Department virtually supported the application for bail made by the accused.

A few years ago in the Richard de Zoysa murder case the AG's Department went out of its way to show that the allegations against the accused could not be sustained for want of evidence.

It is alleged that when government politicians are involved everything is done to help the politician whether he is the accused or whether he is a complainant.

But the same thing does not apply when it comes to other matters where government politicians act and violate the rule of law.

Opposition leader Ranil Wickremasinghe has said he has got 634 complaints of election violence, of rioting, arson, pillage, robbery committed against his supporters by the supporters of the government. The police are deaf or are unable to take proper action. These matters do come to the knowledge of the AG's Department sometimes through the police and sometimes through the victims. Has action been taken to redress these grievances?

Prof. Savithri Goonesekere on November 25, 1994 made an extremely important speech at the 4th Kanchana Abhayapala memorial lecture organised by the Sarvodaya Legal Aid Services. The title of the discourse was 'The Constitution and the Attorney-General.' The professor said since significant changes to Sri Lankan's Constitution were being contemplated, it seemed timely to reassess the position of the Attorney-General, and introduce new constitutional strategies that would enable him to realistically fulfil his responsibilities as an independent, impartial official.

It may be argued that it is 'institutional Fetishism' to use a phrase from Prof. Roberto Unger of Harward Law School that would have us place our confidence in the capacity of an institutional device in the constitution to create robustly independent Attorney-Generals, capable of acting in the public interest without political interference. Ultimately the status of an office and the dignity of its mantle, in the true Thomas Beckett tradition, must rest on the individual who occupies that high office.

Nevertheless the self-restraint and delicate balance required of both the Attorney-General and the Executive in an earlier era have become increasingly difficult, in a political context. Enshrining stronger constitutional guarantees on the Attorney-General's role may therefore assist holders of that high office to fulfil their official responsibilities and sustain public confidence in the law and the Constitution.

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