Rajpal's Column

5th July 1998

…But all fall guys have to be friends

By Rajpal Abeynayake

The President and the Attorney General. Now, they have a love hate relationship, if ever there was one. With suitable elan, she declared open the new wing of the Attorney General's Department, and displayed a great deal of empathy for the officers working there. The President promised to give the Attorneys a pay hike, to treat them as officers and gentlemen of the state. She spoke of a police constable who came by Pajero to prosecute, and a state counsel who got off the bus at the same time. The President had, in a phrase, told the Attorneys "ask what the country can do for you."

Good thing too. It reminds this writer of a seminar held for Attorneys sometime back. Said Justice Mark Fernando, that dapper and debonair upholder of justice at that workshop, that somebody in the audience should briefly run through the functions of the Attorney General's Department. That was duly done. Then, he asked the same member of the audience who had volunteered the information, to try and say what prospects he would envisage for a state counsel at the Attorney General's Department. (The seminar had to do with career planning for lawyers.) What are the prospects at the AG's Department, Justice Mark Fernando repeated again in his clearest stentorian voice.

"The prospects,'' deadpanned a member at the back of the crowd, "are poor." They have been, ever since.

From now on, who knows, things may be better. Nevertheless, " 't was a while back that the President castigated the Attorney General himself, saying that she had written letters to the AG about taking action on the Vijaya Kumaratunga Commission report. "Quite apart from taking action,'' she lamented, "the Attorney General didn't even reply the letters." At the time, it appeared that the AG took the rap, and the grapevine coincidentally had it that the AG will hang up his cloak and take to meditation.

But the President seems to have forgotten all of that now, and Attorney General and the President seem to have buried the hatchet. But, the personal chemistry between the President and the chief law officer of the state is of tangential importance here. That's but a piece of gossip.

The thread that runs deeper is about the ramifications that are involved in how the Executive relates to the Attorney General, in a larger constitutional and political sense. It's a given that the appointment of the Attorney General is an Executive prerogative. A former US President, John Kennedy notoriously appointed his brother Robert as his Attorney General, and note the word notoriously there. Robert Kennedy was a good sidekick to JFK, but was he the President's brother, or was he the President's Attorney General? Well, the question was often asked.

The separation between the Attorney General's Department and the Executive may not be as sacred as the divide between church and state, or between the Executive and the judiciary. But, all good constitutional experts and civic minded men will swear that the divide does exist. Its just that nobody, these days, seems to be quite sure what exactly the divide entails.

All know that an Attorney General or a state counsel is not expected to bend over backwards to do the bidding of the Executive. The surest example will be that a state lawyer is not supposed to be lax on a suspect who is, for instance, a relative of the President. (Its a hypothetical situation , it needs be added.)

But yet, Attorney's, especially new fangled Attorneys find it somewhat difficult to come to grips with the substance of the separation between the office of the Executive and the office of the Attorney General. For example, one state Attorney recently defined the substance of that divide for the benefit of this writer. Said this person that "the Attorney General works for the state and hence is expected to be partial to the state.''

To be fair by this somewhat callow member of the fraternity, perhaps that person had not realised that being partial to the office of the Presidency, for instance, is not the same as being partial to the person that occupies that office. Definitely, the Attorney General should pursue the interests of the office of the Presidency. That's different from saying that the Attorney General should pursue the personal or political interests of the person who occupies that office at a given time. If he does so, then the AG without doubt will be going beyond the call of duty.

None of this is to cast any aspersions on the relationship between the present Attorney General and the President, and the ramifications that follow, if any. But, how the President castigates the Attorney General at one point, and praises him at another, has become a subject of, shall we say, some amount of natural curiosity.

For instance, to get back to that recent example of how the President faulted AG Silva over the Vijaya Commission report, it's just casually relevant that no action was taken thereafter either. This is how it happened. The President fired broadsides at the Attorney General. The Attorney General was wistful and mildly depressed. Then the matter was dropped.

So, asked bemused observers, what was the beef? Was the Attorney General given a schoolmarmish warning? Unlikely. Then, was he simply the fall-guy. If he was the fall guy who took the rap in an impossible situation, maybe the President was just being shrewd. But all fall guys have to be friends, good friends.

That's fine too. But it adds interesting details to how the AG – Executive connection has worked, or may have worked, in a time where even some officers of the AG's department are not sure just how much of a divide there should be between the President and the AG, or why.

Hulftsdorp Hill

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