The Attorney General (AG) being shifted from the Ministry of Justice to HE the President has triggered a debate. This article is intended to contribute to the debate from a historical and constitutional point of view.
At the beginning of the 19th Century, there was no clear separation of powers between the executive and the judiciary. At that time, though the Supreme Court was independent of the executive, the minor judiciary was run by the officials in the administration exercising administrative as well as judicial functions. This colonial practice was partly influenced by the Dutch practice of having one person holding both judicial and administrative powers under the designation of Advocate Fiscal.
From mid-19th Century, the Attorney General (then Crown Prosecutor) served both in the Executive and Legislative Councils thereby virtually becoming the most powerful person in the colony. At that time, the AG was the “supreme arbiter” on administration of justice exercising quasi-judicial functions. He also practiced law in the courts and advised commercial companies and banks in his personal capacity. There is also evidence that when there was a move to increase the AG’s authority with certain supervisory powers over minor judiciary, there were unsuccessful objections and reservations from many quarters. Interestingly, whenever there were issues relating to the Attorney General’s powers, understandably the English practice was followed. For example, the AG was never a member of the Cabinet and he, being a member of the government, was subject to scrutiny by the House of Commons.
With the Donoughmore reforms in the 1930s, AG’s role was redefined and his executive responsibility was restricted with the primary objective of preserving his independence when he exercised quasi-judicial functions. He then moved out of the Executive and was placed on a non-political position. Responsibility for preparing legislation was placed with the Legal Draftsman who came directly under the State Council. Understandably the rational was to ensure independence of judicial organ and integrity of quasi judicial powers of the AG. The Chief Justice congratulated the first AG under Donoghmore reforms as “the titular head of the Bar who can now bring in dignity to proceedings in courts”. With this, the AG became an independent lawyer, who could withhold political pressure in order to secure rule of law. This was, in fact, recognized from the fact that on many occasions the AG has been elevated to the highest position in the Judiciary i.e. Chief Justice, who in any event has to be beyond political approach or pressure.
Later, with the Soulbury reforms in the 1940’s, the responsibility of administration of justice was taken away from the AG and placed under the Minister of Justice. The legal framework and judicial decisions were clear that the Minister did not have legal power to interfere with the decision-making process of the courts or to influence the AG over his quasi-judicial powers. An attempt to reduce the independence of the Judiciary during 1970-77 periods under Justice Minister Felix R Dias Bandaranayaike was rightly resisted by the judges and lawyers. Executive authority was extended over all pillars of governance during that period.
The 1978 Constitution theoretically ensures independence of the Judiciary. The role of the AG, as chief law officer of the State, continues under the Presidential system too. However, an additional function is that where the President is a respondent qua minister, then an action/application should be instituted in the name of the Attorney General. Under the present Constitution, several cases dealt with the importance of the independence of the AG. In Land Reform Commission vs. Grand Central Ltd , the Supreme Court held that the AG is required to always act in the public interest. The decision also recognized the principle that the AG is (probably the only) similar official dealing with all three organs of the State and should be free to exercise his quasi-judicial powers without regard to political considerations whatsoever. Here the principle is that the AG represents the Republic, beyond political considerations, in the best interest of the public and exercises his constitutional responsibilities.
In this background, we need to examine the implications of the AG coming directly under the Executive President, who can act as all powerful Head of the State as well as a Minister. Can the AG avoid conflict of interest in cases where he is required to advise the “State”? Is there any reason or justification for the change of the tradition and move the AG under the Head of State? Will he be more independent, when he is under the President? How will the department officials – all prosecutors – face administrative challenges in time to come. Is there a conflict of interest? I shall venture to address a few of those issues.
The long standing tradition in the AG’s Department, as far as I am aware, is for officials, however high they may be, to seek legal advice from the AG and invariably relevant officials do visit the Department for consultations. This practice is a well recognized convention, evolved to protect the dignity of the institution (and not a demonstration of arrogance). There is every possibility of that tradition being shattered, when the AG’s Department is placed under the Head of the Executive. I am not surprised if, in future, State Counsel and Deputy Solicitor Generals are summoned by different Ministers or officials for consultations at their offices, undermining the dignity of the Chief Law Officer. It is also possible that a protocol will soon be established where political authorities and high ranking public officials summon the AG and his officials for meetings and consultations to influence prosecutions. Paid consultancy services and professional services may also be offered by the AG!
Unlike earlier, the present Constitution requires that the AG be made a party in all Fundamental Rights cases and the AG is entitled to be heard in all public law cases. When the President (in his capacity as a Minister) is a respondent/defendant, such cases must be instituted against the AG. Earlier, in such cases, the AG had an element of independence to advise the President or any official without any attachment. There can be a situation where a President’s election is challenged before the Supreme Court and the AG is required to assist the Court inquiring into the election petition. If directed by the President, the AG may even be forced to draft constitutions or other laws, quite outside his purview. He will later defend those (Bills) in the Supreme Court as an interested party. This role as amicus in those instances will be questionable. In such instances, can the Chief Law Officer of the State assist the court independently? Probably the worst scenario is that the AG is one of two key contenders to be the Chief Justice of the country (other being the senior most Judges in the Supreme Court). All these instances clearly give rise to a conflict of interest where the dignity and independence of the AG is compromised.
The long battle by generations of the legal fraternity to protect the dignity and independence of the position of the AG and the long struggle to protect the AG from political influence is being lost. The real losers are the public at large and the future generations, not to mention the AG’s Department itself. All this is done without the executive rationally explaining why such a change of convention is required at this moment.
JC Weliamuna
Attorney-at-Law, Eisenhower Fellow and Senior Ashoka Fellow