By Nihal Jayawickrama
http://www.lakbimanews.lk/special/spe5.htm
The writer is a well known Jurist and former Secretary to the Ministry of Justice
The President’s decision to appoint a Minister of Justice, and not assign the Department of the Attorney General to the Ministry of Justice is an extremely curious one. It means that the President has assigned to himself, as he lawfully might, the twin subjects and functions of criminal prosecutions and civil proceedings on behalf of the Republic, and legal advice to departments of Government.
What he does not appear to have done is to create a Ministry for that purpose, as required by Article 44(2) of the Constitution. Whenever the President determines that he shall remain in charge of any subjects or functions not assigned to any Minister, he is required to create one or more Ministries for that purpose and to remain in charge of such Ministries. Article 52(7) is quite explicit: unlike the Office of the Secretary-General of Parliament, the Ombudsman and certain others, the Department of the Attorney General is not excluded from being assigned to a Ministry. However, that does not appear to have been done.
One important reason why the Constitution requires the creation of a Ministry to which certain subjects and functions of government are assigned is that there is for each Ministry a Secretary. In addition to being its chief accounting officer and administrative head, the Secretary’s principal responsibility is to exercise supervision over the departments of government assigned to the Ministry. In a 1953 circular, Prime Minister Dudley Senanayake reminded public servants that the Secretary is the senior administrator in the Ministry. “He gives to the departments such instructions as may be needed to give effect to the government’s policy, and he is responsible for seeing that the work of the departments is correctly and efficiently performed. On the other hand, he must be the friend and supporter of the heads of department as well as the right hand of the Minister. He needs to exercise great tact and judgment, for he must be able to decide what can be left to the heads of departments and when he should intervene”. Under the Constitution, the Department of the Attorney General is not permitted to operate outside a Ministry.
The 1946 Constitution expressly provided that of the Ministers, one shall be styled the “Minister of Justice” and another shall be styled the “Minister of Finance”. The Constitution also required that not less than two Ministers, one of whom shall be the Minister of Justice, shall be Members of the Senate. Therefore, from the inception of democratic government in this country, there has been a Ministry of Justice, and the principal department assigned to that Ministry has always been that of the Attorney General. The requirement that the Minister should be drawn from among the Senators was obviously to ensure that he would not be an active politician, especially because he had responsibility for the administration of justice. Successive Prime Ministers looked to the judiciary, the bar and academia when appointing Ministers of Justice. However, in January 1972, with the abolition of the Senate, an elected member of parliament, Felix Dias Bandaranaike, was appointed to that office.
Anomalous position
In the executive branch of government, the Attorney General occupies an anomalous position. He is the head of a department of government and, in that capacity, is subject to the direction and control of the Minister and to supervision by the Secretary. At the same time, the fact that he is responsible for criminal prosecutions means that he must act independently, according to his own judgment, in a quasi-judicial manner. I experienced this rite of passage very early in my life when, after serving one week in the office of Permanent Secretary to the Ministry of Justice, I was appointed to the office of Attorney General that had been rendered vacant by the sudden death of its previous incumbent. One of the first files that required a decision was that relating to Ven. Devamottawe Amarawansa Thero and six others, all active supporters of the UNP, who had been arrested and remanded shortly after the 1970 general election on charges of possession of hand-bombs. The arrests had received a great deal of publicity and the new United Front Government naturally used the event to its advantage in its post-election propaganda, especially in the electorate in which he was arrested where the poll had been postponed due to the death of a candidate. On the material placed before me, no charges could be preferred against any of the suspects. There was no evidence to establish conscious possession of the explosives by any of them. I had no alternative but to immediately instruct Crown Counsel to appear in court and move for their release from custody. My decision, no doubt, caused some considerable degree of embarrassment to the new government.
The Department of the Attorney General is, in a sense, unique. It is basically a law firm that services the government. However, the fact that it is constitutionally required to be embedded within a Ministry means that both the Minister and the Secretary will necessarily interact with the Attorney General and his staff. It has been suggested, from time to time, that in the 1970-1977 period, both the Minister and the Permanent Secretary “interfered” with the technical functions of the Attorney General. That was not so. Two of the Ministers of that period – Senator Jayamanne (1970-71) and Ratnasiri Wickramanayake (1977) were relatively inactive in respect of legal matters. It was different with Felix Dias Bandaranaike (1972-76). However, since both he and I had been in active practice before entering the Ministry, we were well aware that the office of Attorney General was quasi-judicial in nature, and that in the matter of criminal prosecutions the final decision was for the Attorney General alone.
Transparency and accountability
It was the practice for Felix Dias Bandaranaike (especially since he held other ministries that required his presence elsewhere) to meet with the senior officers of the legal departments (including the Attorney General, the Solicitor General and the Director of Public Prosecutions) every Monday – and if possible, every Friday as well – to be briefed on current developments. Sometimes the chief legal officers sought our intervention to resolve problems that had arisen among them. In respect of civil litigation, if any policy issues arose, the Attorney-General would be bound by policy directions. In respect of criminal matters, both the Minister and I sometimes expressed our views, and even argued at length, occasionally with passion (as in a much publicised acid throwing case). More often than not, we were all on the same side, especially when contending with the extremely suspicious, single-minded but intrepid investigator, Tyrrel Gunetilleke. But we always recognized and accepted that the final decision was for the Attorney-General, and for the Attorney-General alone. That was territory into which we never trespassed. The three Attorneys-General of that period – Mr Victor Tennekoon QC, Mr Rajah Wanasundera and Mr Shiva Pasupathi – were not only learned in the law, but were also men of integrity, independence and courage.
It is not suggested that there were no conflicts whatsoever between the Attorney-General’s Department and the Ministry of Justice. There was one occasion I recall when the Minister of Housing disagreed with the advice he had received from the Attorney General and referred the matter to me. I examined the files and was inclined to agree with the Housing Minister. When the matter eventually went to court, I suggested to the Minister to retain private counsel to represent him. There was another occasion when I disagreed with advice tendered by the Attorney-General to the Prime Minister on a constitutional issue, and I forwarded my separate opinion together with his. A third occasion I recall was in early 1977 when the Attorney General rejected a suggestion, that was really in the nature of a policy direction, that the accused in the Duraippah Murder Case should be tried under the normal law by a jury in the Jaffna High Court instead of under emergency regulations at a Trial-at-Bar before three judges in Colombo. Such conflicts were inevitable among lawyers, but were never intended to be, nor were they perceived as, “interference”.
The office of Attorney General is of singular importance in the governance of the country. In 1947, for historical reasons, the Attorney General was placed above the Judges of the Supreme Court in the Table of Precedence. I do know of an occasion, as far back as 1956, when the newly appointed Parliamentary Secretary to the Ministry of Justice telephoned the Attorney General’s office and left a message asking the Attorney General to come up and meet him, and was then informed that the Attorney would be happy to meet him in his chambers at a mutually convenient time if the parliamentary secretary would kindly seek an appointment for that purpose. That was probably correct protocol because a lawyer does not visit the client. However, in my experience, the relations between the Minister, Permanent Secretary and Attorney-General never reached that degree of formality, and we constantly interacted with each other. That, I believe, is essential to ensure both transparency and accountability.