FREEDOM OF EXPRESSION SRI LANKA

For press freedom by Sunanda Deshapriya

Attorney-General and Legal Draftsman depts directly under President now

by Namini Wijedasa

A gazette notification was issued on April 20 assigning subjects and functions to the new ministers. It also set out the departments, public corporations and statutory institutions falling under the purview the different ministries.

But where was the attorney general’s department or the legal draftsman’s department? They were conspicuously absent from the list. Instead, there was mention under the ministry of finance and planning a department that does not even exist – that of legal affairs. Even Justice Minister Athauda Seneviratne, when questioned last week, said: “I don’t know what that is. There is no department of legal affairs”.

Minister Seneviratne did, however, confirm that the attorney general’s department and the legal draftsman’s department are now under the president’s office. He was not aware when he was given the justice portfolio that it would be minus these two departments. According to sources, Seneviratne hadn’t even known this on the night the gazette was being printed.

Speculation

There was a perceptible lack of clarity among the legal community last week about the fate of the two departments. Those who saw the gazette remarked that they were not listed under any of the ministries held by the president and therefore did not fall under his purview. Others speculated that the ‘department of legal affairs’ (that nobody had known existed) must be the attorney general’s department and the legal draftsman’s department rolled into one.

Matters of national importance such as these should not be a subject of speculation. Fortunately, a senior legal source who studied this subject clarified to this newspaper that, under the parent statute pertaining to the issuing of gazette notifications, if a particular subject or government institution is not listed the law deems it to be under the president.

The AG’s department feted its 125th anniversary in 2009 and was for many years listed under the ministry of justice. Previously, it functioned under an apolitical senate with a senator being appointed as a minister for the attorney general’s department in order to preserve its independence. The AG’s department in protocol is considered to be above the cabinet of ministers.

To further preserve the sanctity of this department, the 17th amendment to the constitution decreed that the president shall appoint the attorney general only once such appointment was approved by the constitutional council.

But in December 2008, President Mahinda Rajapaksa installed President’s Counsel Mohan Peiris as AG, overlooking Acting Attorney General Priyasath Dep, PC, who was next in line. Peiris was shuttled in from the private bar after having retired from the AG’s department.

Breakdown of law and order

It is not immediately clear what changes would occur due to the president’s “takeover” of the AG’s department. The move has both baffled and alarmed the legal community. But, as is often the case now, only a handful spoke openly about it.

Some, like Wijedasa Rajapakshe, were emboldened by their positions in parliament. Most lawyers, however, ran scared. The expression of opinion — even by individuals with no connection to the state — is today stifled by an incomprehensible fear of undefined repercussions.

Disastrous effect

“My view,” said Rajapakshe, “is that taking the attorney general’s department under the president who has enormous powers would have a disastrous effect on the country as far as law and order is concerned. The independence of the institution as well as the legal system will be failed.”

When it was pointed out that the president could have influenced the AG’s department (if he so wished) even while it was under the ministry of justice, Rajapakshe responded: “That is true, but it would be worse not to have any safeguards. Of course, the president has the right to take over the department. That is his prerogative. People have given him a mandate and he can do whatever he wants. But it is also a question of ethics.”

“I’m frightened,” said one lawyer, speaking on condition of anonymity. “The danger is whether this close proximity to the president will be used by either him or others associated with him to influence the objective decision-making process of the AG’s department.”

The counter issue, though, is that the president need not have resorted to taking over the AG’s department in order to exert influence over that institution. “He has a head of department who was not installed in terms of the constitution,” said the lawyer earlier quoted. “He is a direct political appointee who is, therefore, under obligation to him. The president could just give him a phone call and ask him to do something a particular way.”

Subservience

It is debatable whether Peiris, who is a respected lawyer, was influenced in this manner during his tenure as AG. It is a position he still holds. Still, one could argue on a point of technicality that a special political appointee — handpicked as he was from the private bar — would be required to evince a greater degree of subservience than somebody impartially appointed in line with the constitution.

For administrative purposes, there must be a ministry secretary — but it was not clear last week whether this would be the secretary to the president or the secretary to the ministry of defence. In fact, there is enough murkiness here to condemn the status quo as preposterous.

For instance, what is the legal affairs department? Most importantly, what is the strategic reason for the president taking over the AG’s department when whatever he wants to do can presumably be done while it remains under the ministry of justice?

Worrisome

“This can be a little worrisome, unless there are compelling administrative reasons to justify it,” said another senior president’s counsel who requested anonymity. “But I don’t know the reasons. This is bound to raise an issue among lawyers but most of them would prefer not to comment without informing themselves of the reasons.”
Some lawyers speculated that the deliberate omission of the AG’s department and the legal draftsman’s department from the gazette and the inclusion of a “department of legal affairs” may have been a deliberate act to test public reaction.

Lawyers like Upul Jayasuriya remember a time when the minister of justice or the secretary to the ministry of justice had to make an appointment to meet the AG.

They would then wait in the visitor’s room until the AG finished his business and it was their turn to go on. “The office of AG was held in high regard,” he said. “At all times, there has never been a murmur of allegation against any AG or any officer of the AG’s department that they were politically biased.”

And today? A young lawyer laughed when asked whether the AG’s department today is independent. “Yes,” he said, naturally asking not to be quoted. “It’s supposed to be. But to our lasting dismay, it most certainly isn’t.”

Hands–off AG’s dept

The functions of the AG’s department enshrines three instruments – the constitution, the criminal procedure code and the establishment code.

Unlike other government functionaries, the AG’s actions are not linked to ministerial directives or directives from any other person; nor do any of these instruments require the AG’s department to act in consultation with or on the advice of anybody else.

This is where the executive has generally maintained a hands-off approach towards the AG, enabling his department to function in an “autonomous” manner. But the involvement of a ministry was required for issues such as administrative control, allocation of finances and disciplinary procedure. Till April 30, this had been the business of the ministry of justice.

Legal sources, who chose to remain unnamed, said that apart from a few exception circumstances in the 1970s, successive ministers of justice as well as secretaries to the ministry of justice have “understood the situation and maintained an aloof type of relationship with the AG’s department”. They have not “interfered” with technical functions although there may have been intervention in financial and practical matters.

Nevertheless, there necessarily has to be a link between the state and the AG’s department. The institution has three roles: to be the legal advisor to the state, head of state, secretaries, etc; to defend the state and its agents in litigation; and work associated with criminal courts, whereby the department advises the police, files criminal proceedings and prosecutes alleged offenders. This last area of criminal work has nothing to do with state policy. The AG’s department could even indict a minister, if the need arises.

The role of the department, therefore, is defined as quasi judicial. There is necessarily a “state” element with regards to the tendering of legal advice to the government. When advising the state on a particular project, for instance, the AG’s department must take into consideration government policy and give effect to that policy. This is a legitimate link between the AG and the executive branch of state. There is also an obvious link where defence of the state in litigation is concerned.

But with regard to the role of the AG’s department in criminal work, there cannot and must not be a connection to or with the state. The department must have independence to decide whether or not to prosecute individuals, particularly powerful political allies of the government. There cannot be a situation where a politician, says, “Mr X is my man, don’t take action against him.”

What will the status quo be now, with the executive wielding direct and formal influence over the prosecution of the law and over the department that determines what goes to court? The situation is no longer confined to the possible use of influence. It has deteriorated to actual management, making it much harder to identify abuse. ~ courtesy: Lakbima News ~
http://transcurrents.com/tc/2010/05/attorneygeneral_and_legal_draf.html

May 2010
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