By Kishali Pinto Jayawardene
Very few thinking people in Sri Lanka will assert in all good conscience that the office of the Attorney General has been free from political controversy as a matter of historical fact. That last rider is important lest it should be thought by a misguided few that all the evil began (and therefore would end, logically speaking) with the current administration.
Public perception of the office of the Attorney General at its lowest ebb.The reality is, of course, far more complex than simplistically attributing the present decline of the country’s premier state law office to a greedy grasp for power and more power on the part of present-day politicians. True, it was the actions of the present that resulted in the office of the Attorney General being moved out from the Ministry of Justice to the direct control of the Presidential Secretariat. In the period since then, we have seen increasing reports of unseemly attempts to withdraw charges by the Attorney General in criminal cases involving prominent politicians and other public figures.
In some cases, the Court has refused to accept a mere application by the Attorney General for withdrawal and correctly put the matter in issue by insisting that grounds should be furnished as to why charges are being withdrawn after a trial has commenced, the adequacy of which will be tested by the Court.
Generally therefore, the public perception of the unbiased functioning of the office of the Áttorney General is at its lowest ebb today. But this negative transformation of a once highly esteemed office did not happen in a blink of an eyelid. What is occurring now is merely an unpleasant culmination of all that had gone on before and deserves greater and more serious thought. The politicization of the office of the Attorney General hastened with unbecoming speed particularly from the time of the United National Party administration in the eighties.
The past that some of us may have forgotten
One stark example was the enforced disappearance and brutal slaying of media personality Richard de Zoysa. His mother attested to the identification of one of the abductors as a Senior Superintendent of Police who was thereafter ordered to be arrested by the magistrate. But the police with the compliance of the then officers of the Attorney General did not carry out the arrest. Later, the Attorney General declined to proceed with the case on the spurious basis that evidence was lacking.
This refusal was castigated by the Liberal Party at that time, among others, which accused the government of a cover-up. Meanwhile, the alleged abductor was ironically himself killed years down the line in a bomb blast targeting a senior politician. Another oft quoted example is the inability to prosecute those responsible for the massacre of prisoners during the Welikada Prisons riots during this same administration.
Limited justice in certain cases
In more recent times during the Kumaratunge administration, state law officers were implicated in cover-ups of the investigations into civilian massacres in connection with the then ongoing war in the North and East. There were some rare exceptions, as for example the oft quoted Krishanthi Kumaraswamy case in which a persevering prosecutorial team was able to present their case well before empathetic judges in the gruesome rape and killing of a schoolgirl along with her mother, brother and a neighbour by soldiers attached to the Chemmani checkpoint. Another good instance was the abduction and killing of schoolchildren in the deep South in Embilipitiya during the second Southern insurrection. In both these cases, only junior soldiers were successfully prosecuted. Even in scattered prosecutions of other cases that followed thereafter, no high profile perpetrator was convicted.
Lack of prosecutorial due diligence
In some sensitive cases which resulted in acquittals at the jury stage in the High Court, appeals have not been lodged against these acquittals despite the repeated requests of the affected parties. A similar trend has been seen in prosecutions under the Convention Against Torture and Other Inhuman and Degrading Punishment Act No 22 of 1994. The record of successful prosecutions under this Act remains abysmal and the High Courts themselves have, on occasion, reprimanded the officers of the Attorney General for lapses in prosecutorial due diligence. On its own part, the Supreme Court has theoretically asserted its right to examine and critique the actions of the Attorney General in some well known cases that needs no repetition here. The problem however remains the overwhelming power of the executive in all spheres, prosecutorial and legal. In this background, expecting state law officers to function impartially is akin to dreaming idle dreams.
The lack of independence of the office of the Attorney General and its subservience to the executive is seen not only in cases but also when officers of the Attorney General are called upon to represent the government in international fora and comes poorly equipped to defend a bad brief on occasion. This is not to state that each and every officer of the Attorney General’s Department is similarly inept, which is not the case. However, on occasion, it is unfortunate that reasoned critiques of differing positions on matters of crucial interest to the country are replaced by ill prepared blustering denials that are actually tremendously counterproductive in appreciating the problem and acknowledging corrective measures that need to be taken.
Comparative examples and much needed changes in domestic practice
Contrasted to this timidity in our country, very different realities prevail elsewhere. In England for example, the view once held that all that an Attorney General has to do to stop any prosecution on indictment by entering a nolle prosequi is to ‘merely sign a piece of paper saying that he does not wish the prosecution to continue’ (Gouriet v Union of Post Office Workers, 1977, QB, 729) has long given way to far more stringent standards. Where prosecutors depart from pre-existing policies or guidelines in the exercise of their discretion (R. v Chief Constable of Kent exp. L., AER, 756 and in R v DPP ex p. C  1 Cr.App.R. 136), they have been held accountable.
Similarly, it has been asserted that if an applicant is able to establish that the Attorney General or any of the police officers against whom complaint was made had been guilty of abusing the process of court or acting in an oppressive manner towards the individual, the court would have power to dismiss the charge though this power would be welcomed in the most exceptional circumstances. In these countries as well as in India, for example, sustained debates take place as to the exact powers of the Attorney General and the caution is strongly made by courts themselves that such powers should not be regarded as being unfettered. The discretion vested by statute in the Attorney General must be exercised with fairness, honesty, reasonableness, without arbitrariness and discrimination and by taking into account relevant considerations only. In the absence of these criteria, the Attorney General could be taken to task by the courts.
What has been practically asserted in these cases is that the immunity from liability afforded to the Attorney General is limited and qualified and is only applicable if the holder in the office acts reasonably and without malice and without culpable ignorance or negligence. The discretion must moreover be exercised in a quasi-judicial way and not arbitrarily, oppressively or in a manner contrary to public policy.
We certainly need to witness vigorous public opinion demanding that these admirable principles are asserted in full force here as well .