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The Dilemma: balancing politics and the law

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Former Attorney General Shibly Azeez PC, making an address  at the Technical sessions of the Conference of Attorney Generals of Asia Pacific held in Colombo spoke of the role of the office of the Attorney General and the conduct expected from the office. As the only Sri Lankan speaker at the sessions which were held in commemoration of the 130th anniversary of the AG’s Department, Mr. Azeez spoke of the recent events during the concluded Presidential elections, and the conduct of the Attorney General’s Department during the time. Following is an excerpt of his speech…



In Sri Lanka the Attorney-General has under successive Constitutions after independence, retained his non-political status and did not become a member of the Cabinet



n Sri Lanka, the Attorney General is not a member of the Cabinet nor is he given any special position vis a vis the Parliament, except in the case of vetting Bills for Constitutionality. Nor is he able to address Parliament in any capacity. 

At the 1984 Conference, the  then Attorney-General Mr Shiva Pasupathy gave a short but vivid description of the position held by him. He said:

“… the Attorney-General is the lineal successor of the Advocate Fiscal and later, the King’s Advocate. It appears that during the Dutch period in our history, there was the Advocate Fiscal appointed by the Government of Batavia, who combined two different functions. In civil cases, he deliberated and voted as a judge: in criminal cases he was considered as the public prosecutor. During the British period that followed, when in 1802 the Supreme Court of Judicature was established, the office of Advocate Fiscal was retained. In the Charter of Justice in 1833, the Office of Advocate Fiscal underwent the transformation to that of King’s Advocate. It was over 100 years ago, in 1884 that the office of Attorney-General was established by law consequent to a decision of  the Supreme Court.”

In Sri Lanka the Attorney-General has under successive Constitutions after independence, retained his non-political status and did not become a member of the Cabinet. Hence, the need or the requirement for independence of his office never became the subject of debate or controversy. Whilst the need is accepted, whether the present procedures for appointment is satisfactory -  with one factor being the unfettered discretion given to the President to appoint the holder - raises significant concerns as to whether the correct person gets  appointed to this prestigious and important post. 

Recently the appointments have been to the satisfaction of the Bar, which is the primary body to reflect on such matters, though the salutary provisions which were placed about 15  years ago to ensure this, were repealed, much to the chagrin and disappointment of the Legal Community in Sri Lanka. We hope the earlier provisions will be reinstated with more safeguards built into them to  ensure the correct appointments to this office and also very importantly the higher judicial offices, the lack of which has eroded the public confidence in the delivery of justice. 

The last many years  have witnessed a growing public awareness of the critical role of the Law Officers in the Constitutional framework of Government. The office of the Attorney-General stands at the intersection of Government and Parliament, the Courts and the Executive, the unofficial Bar and the Public Prosecutor, the State and the citizens. The conflicting pressure inherent in the hybrid nature of the office have made us in Sri Lanka keep the Office of Attorney-General apart from the Legislature and as a separate Department of State functioning under the Attorney-General himself, so that his role remains, as far as practicable,  independent.

Speaking of the United Kingdom,  in 1948 when it was urged that the Attorney-General should not appear before the Lynskey Tribunal appointed to inquire into allegations of corruption against certain members of the Attlee Government Sir Hartley Shawcross the Attorney-General thought otherwise. As he subsequently wrote.

“It was the duty (however personally unpleasant) of His Majesty’s Attorney-General to represent the public interest with complete objectivity and detachment and that to refuse  to discharge that duty in a particular case in which the public interest might be suspected to conflict with the interests of certain of his friends or his political colleagues would be tantamount to saying that the office itself was inadequate to represent and protect the public interest against whosoever might challenge it.”

Sir Hartley Shawcross emphasised that it was the Attorney-General’s duty to be wholly detached, wholly independent and to accept the implications of an obligation to protect what “he conceives to be the public interest whatever the political results may be.”  

‘‘If political considerations which in the broad sense that I have indicated affect Government in the abstract, it is the Attorney-General, applying his judicial mind, who has to be the sole judge”.

In Sri Lanka, the Attorney-General has very broad power over the investigation and prosecution of criminal offences. Investigations carried out by police and magistrates are subject to the Attorney-General’s control and direction. Likewise decisions to indict or not in cases of serious offences and the precise framing of charges and consequent prosecution lie fully within the Attorney-General’s control. The Attorney-General thus holds a central position within the criminal justice system and plays a critical role. The effective exercise of accountability within the criminal justice system requires the Attorney-General to act effectively and independently, as well as the actual existence of a  legal framework that permits the Attorney-General to so proceed. This would also apply to any cases of violations during the final stages of a war, as the one we had recently.

The independence of the Attorney-General’s Department has been challenged at particular points in the country’s history. It has been said, and I agree to some extent, recently been weakened; an issue of particular relevance was  if that office should assume investigations into senior members of the Government or military for the final stages of the war. Another blow followed the  2010 elections, a gazette notification setting out each ministry’s functions and responsibilities removed both the Attorney-General’s Department and the Legal Draftsman’s Department, whose primary task is drafting new laws, from the Ministry of Justice where they had been previously located. As newly “unlisted” departments, these departments now fall under direct presidential control by virtue if Article 44(2) of the Constitution, and were organisationally located in the Presidential Secretariat.

I believe every AG has realized at some stage of his career that work and the responsibilities  indeed can be very painful and can take a toll. Unless of course, you adjust to your role and envisage it as nothing but giving proper and considered legal advice to those who seek it - in this case the Government.  Not what your client wants to hear  – but what  you,  in your professional wisdom distilled over the years,  thinks what should be given -  taking into consideration your clients interests as well as that of the public - with  both interests firmly rooted in the law and the Rule of Law. 

The Attorney General traditionally has the duty (as recently put very quaintly by  the current English Attorney General))  “to keep the Government and its actions within the circle of justice”. He must  ‘police its boundaries” and ensure that the Government does not stray out of  these. But this does not mean that his role ought to be considered as negative or disruptive of government policies  – he must as every public servant be loyal and supportive of the Government and its endeavours – and like every such public servant  point out where it is going outside proper governance-  and in the case of the Attorney General ‘ outside the circle of justice”. He must give his robust and independent advice – tell  the Government the manner in which its goals can be achieved  without violating legal principles or stepping on  legal toes - and this is what AGs in the past have done. It is only then that the post is respected and the advice looked forward to by Governments.

Though one may express these sentiments in the rarified atmosphere we find ourselves in this hall today, avoiding political turmoil and criticism is not easy and the job is indeed tricky. Any rabid politicisation of the office by its holder increasingly diverts the functionary into turbulent waters and prevents him from performing its original function. The politicization has  taken its toll on some holders of the office of the AG in this country as elsewhere. 

There are various components of the Attorney General’s role. The Attorney General has unique responsibilities to the Crown, the Courts, the Legislature and the Executive branch of government. While there are different emphases and nuances attached to these, there is a general theme throughout all the various aspects of the Attorney General’s responsibilities that the office has a constitutional and traditional responsibility beyond that of a political minister or as Chief Legal Advisor to the Government

Some Attorney Generals have supported the government’s view. Some have cautioned government on what they have done or proposed to do. But each incident stressed the independent judgment and accountability of the Attorney General. 

The Attorney General has to keep the political aspects linked to development and social needs also in mind when his services are availed of by the Government. This is specifically so when his services are sought in the area of economic and social development where he and his Department may get involved in suggesting and drafting laws or expressing opinions in these areas.  In the wake of Asia’s striking economic progress,  issues of law and governance are now seen as critical for the developing, developed and post-conflict states of Asia. The development of law in Asia from the perspective of law reform initiatives intended to create ‘development’ in its various aspects - economic, social, and political.  The emphasis will be on rule-of-law entrenchment, good governance reforms, and constitutional change. The relationship between law and economic development has been a central concern of modern social theory. TI can do no better than conclude with a very percipient observation of our Supreme Court made a few decades earlier (which related to the correctness of a Government decision to permit officers of our Department to private practice).

“The Attorney-General of his Country is the leader of the Bar and the highest Legal Officer of the State. As Attorney-General he has a duty to Court, to the State and to the subject to be wholly detached, wholly independent and to act impartially with the sole object of establishing the truth. It is for that reason that all Courts in this Island request the appearance of the Attorney General as amicus curiae when the Court requires assistance, which assistance has in the past been readily given. That image will certainly be tarnished if he takes part in private litigation arising out of private disputes. I cannot but agree with the judgment of the Court of Appeal that there are constraints on the Attorney-General engaging in private practice in the civil law as well as the criminal law. It is regrettable that the State has sought to act counter to tradition, (prudence and propriety) in granting the Attorney General and his law officers the right of private practice. Justice is the loser thereby. No man can serve two masters. For either he will hate the one and love the other- or he will hold to one and dispose the other. No Attorney-General can serve both State and private litigant” (Grand Central Case-1981)
 
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