Protect AG’s autonomy: Justice must remain uncompromised

With the exception of D.S. Senanayake and S.W.R.D. Bandaranaike, most Heads of Government and Ministers of Justice have, to varying degrees, interfered with the AG’s office

Generations of legal professionals have fought to protect the dignity and independence of the Attorney General, but this is now being eroded

Last week’s events—AG’s advice to drop charges against three suspects in the Lasantha murder case, protests outside his office, and the President summoning him—raised critical questions about his autonomy and independence.

Justice Mark Fernando once said, “What is required are Just Persons. Not Just Constitutions, Just Laws or Just Institutions. Right persons and not institutions, because Paradise even on earth is not a physical place of material development, but a set of values: fairness, tolerance, non-discrimination and so on. A Nirvana in which people are liberated from craving and evil.”

The AG is usually a senior advocate with experience in constitutional and criminal law. The office is independent of executive control, with the President unable to influence legal proceedings. The AG’s Department oversees criminal cases, provides legal opinions to government bodies, and ensures legislative compliance with the Constitution. Unlike in the United States, Sri Lanka’s AG has no executive authority, which lies with the Minister of Justice.

AG: Guardian of Justice above Politics

With the exception of D.S. Senanayake and S.W.R.D. Bandaranaike, most Heads of Government and Ministers of Justice have, to varying degrees, interfered with the AG’s office.

Mahinda Rajapaksa placed the AG’s Department under his purview, jeopardising the separation of powers and the justice system. Political interference in AG appointments dates back to the 1960s and ’70s—Felix R. Dias Bandaranaike exploited the office during Sirimavo Bandaranaike’s 1970-77 government, while Ranasinghe Premadasa bypassed seniority to appoint a junior lawyer as Secretary to the Judicial Services Commission, influencing judicial appointments. Under Prime Minister Dudley Senanayake [1965-70], AG, Victor Tennakoon resisted political pressure to prosecute Sirimavo’s brother, Dr. Mackie Ratwatte, on a trumped-up bribery charge. Tennakoon was replaced by A.C.M. Ameer QC, a UNPer from the private bar, who complied. The court dismissed the case at the first hearing.

J.R. Jayewardene shattered tradition in 1980 by allowing the AG and his department to engage in private practice, likely anticipating reciprocation, which led to conflicts of interest. AG Siva Pasupathi’s attempt to represent the Land Reform Commission in a private capacity was initially blocked by the Court of Appeal but later upheld by the Supreme Court. In Appeals No. 36/81 and 37/81, a five-judge bench led by Chief Justice Samarakoon reaffirmed the principle that “No Attorney-General can serve both the State and a private litigant; he has a duty to the court, the State, and the subject—to be wholly detached, independent, and act impartially in pursuit of the truth.”

The AG plays a crucial role in fundamental rights applications to the Supreme Court, traditionally defending respondents, particularly in presidential actions under Article 35 as the Chief Law Officer, advises and defends public officers in Fundamental Rights cases, carefully reviewing their responses while upholding constitutional rights.  However, the Constitution does not mandate the AG to automatically defend such actions, allowing discretion in participation. Emphasising this discretion could strengthen constitutional compliance and executive accountability, reshaping Sri Lanka’s legal framework.

The AG’s independence is essential, and any shift in this balance threatens established traditions, such as consultations between senior officials and the AG. The risk is that this could erode the AG’s authority and invite undue political influence, raising doubts about the office’s ability to provide impartial legal counsel while operating under the President’s direct authority, eroding its credibility and morale as it shifts from an independent institution to a political tool.

Under Section 54 of the Constitution, the President appoints the Attorney General on government advice. While the Solicitor General traditionally succeeds the outgoing AG, political interference has disrupted this convention, threatening judicial independence. The real victims are not just the AG’s Department but also the public and future generations, who rely on an impartial legal system. The 17th and 19th Amendments sought to protect judicial autonomy by ensuring tenure for key legal officials, including the AG and Supreme Court judges.

The AG’s office plays a crucial role in balancing government authority with citizen rights, ensuring that executive actions, legislative measures, and judicial decisions remain within constitutional limits. By advising on draft legislation, overseeing the prosecution of serious offenses, and intervening in matters of public interest, the AG helps maintain a fair and effective legal system.

Evolution of the Office of the Attorney General 

The office of the Attorney General was formally established in 1884 under British rule, though its origins trace back to the Advocate Fiscal during the latter Dutch period. Under British administration, it was renamed King’s Advocate in 1834 and later Queen’s Advocate during Queen Victoria’s reign.

With Ordinance No. 1 of 1883, the titles of Queen’s Advocate and Deputy Queen’s Advocate were replaced with Attorney General and Solicitor General. The deputies were designated as Crown Counsel, and all powers and privileges of the former office were transferred to the new positions, effective January 1, 1884. When introducing the ordinance, the Queen’s Advocate emphasized that the new officeholders would retain the rights and privileges of their English counterparts, ensuring continuity in legal authority. The Donoughmore reforms of the 1930s redefined the AG’s role, reinforcing independence and limiting political interference. The Soulbury reforms further distanced the AG from the executive, placing judicial authority under the Minister of Justice to uphold the separation of powers. The 1978 Constitution maintained the AG’s independence, affirming that the office serves the public interest, free from political influence. However, with the AG under the President, concerns about conflicts of interest have emerged.

Since 1946, Sri Lanka’s Constitutions have upheld the non-political status of the Attorney General and Solicitor General, with the AG remaining the Chief Law Officer of the State. His role expanded under the 1972 and 1978 Constitutions. Under the current Constitution, the AG is appointed under Article 41A on the recommendation of the Parliamentary Council, with tenure protected by the Removal of Officers (Procedure) Act No. 5 of 2002, ensuring independence from political interference.

Generations of legal professionals have fought to protect the dignity and independence of the Attorney General, but this is now being eroded. Placing the AG under the President’s authority threatens the impartiality of the role, which has been vital in ensuring justice free from political influence. The executive has failed to provide a clear rationale for this change, leaving the public questioning its true intent. Without transparency, it appears more as a political maneuver than a genuine reform, raising concerns about its impact on justice and democracy in Sri Lanka. Over four decades of experience have shown that the Executive Presidency lies at the heart of many national crises. It has fueled constitutional authoritarianism, weakened democratic institutions, and eroded the rule of law. The breakdown of law and order, corruption, nepotism, judicial interference, and militarization all stem from unchecked executive power. 

Successive governments have repeatedly undermined constitutional safeguards, allowing executive dominance to persist and further corrode public trust in the justice system. Without abolishing the Executive Presidency, every other reform—including ‘Clean-SL’—merely treats symptoms while ignoring the root cause. True transformation requires more than superficial fixes; it demands a structural overhaul that restores democracy, accountability, and the rule of law.

 “There is a higher Court than the Court of Justice and that is the Court of Conscience.”- Mahatma Gandhi

(The writer can be contacted at-  [email protected] )