Sri Lanka: The role of the Attorney General and the Rule of Law

Where a patient dies while being treated by a Medical Practitioner, whether the evidence discloses a case of criminal negligence that warrants, an arrest is a complicated issue a police officer would not be competent to decide. If the suspect Medical Practitioner is arrested on the basis of the first complaint and he or she is remanded for the purpose of further investigations, that would cause irreparable damage to a person who may be totally innocent of any offence.

The following is an edited version of an oration delivered by former Attorney General Palitha Fernando, PC at the BMICH on November 7 to commemorate the third death anniversary of C.R. de Silva, former Attorney General and chairman of the Lessons Learnt and Reconciliation Commission.

( November 13, 2016, Colombo, Sri Lanka Guardian) At the very outset, I wish to express my profound gratitude to the organisers of the C.R. de Silva memorial oration, for honouring me with the invitation to deliver the first oration. Mr. de Silva was a person with whom I had been associated for over four decades. He was a young school boy at Royal College, Colombo when I first saw him in 1968. Ever since, my admiration for him has grown as in the case of anyone who knew him closely.

In him, within a seemingly rough exterior, there was a passionate humane personality whose unselfish generosity was well known. He was a great leader, anyone would like to emulate. I always was of the view that he was a leader who was behind his men. Even as a young school boy, I was not impressed with the phrase that one should lead from the front. I felt it was an obsolete phrase that would fit only those who sought violence as a mode of resolution of disputes. Mr. De Silva, I thought, was always behind his men, which I believe is a quality of a great leader.

I found support for my thinking from no less a person than President Nelson Mandela: President Mandela has said:

“A leader is like a shepherd. He always stays behind the flock, letting the most nimble go on ahead, whereupon the others follow, not realising that all along they are being directed from behind.”

I thought I would speak on the “Role of the Attorney General of Sri Lanka and the Rule of Law; with special reference to the Criminal Justice System.” I thought of that topic for two reasons. Firstly, as Mr. C.R. de Silva was the 24th Attorney General of Sri Lanka himself, and during Mr. De Silva’s tenure as Attorney General, he made all endeavours to uphold the Rule of Law; and, secondly, since it is a current topic.

Punitive powers of Commissions
It is an important aspect of the Rule of Law, that persons should be tried, convicted and punished by the normal courts and not by tribunals specially established for that task. That was one reason why the Commission to Investigate Allegations of Bribery or Corruption was conferred with only investigative powers. The Criminal Justice Commission established to inquire into offences committed during the 1971 Insurrection and foreign exchange violations was conferred with punitive powers, and the activities of the Commission and regrettably the Commissioners came under heavy criticism on this basis.

When I was Attorney General, I had the honour of delivering, the K.C. Kamalasabeyson Memorial Oration, in memory of the 23rd Attorney General of Sri Lanka, an equally honourable gentleman. When I delivered that oration, I had to carefully weigh and consider each word I uttered as I was then the incumbent Attorney General. Today, as I stand here before you to make this presentation, I am a retired public servant, and I feel free to express my views without restraint.

In that presentation I said:

“Indeed there would be no Rule of Law, if law abiding citizens live in constant fear of being preyed upon by the thief and the murderers with no protection of the law enforcement authorities. Stringent laws to deal with law breakers therefore, would itself, be a formidable safeguard against abuse. However, it would be equally necessary that there be sufficient protection and effective remedies against the abuse or misuse of such authority by the Executive or Law Enforcement Officers.” (This, I believe is a statement of Lord Denning, the source, I was unable to quote.)

I thought I would quote that passage, to show that the view I hold today, I held even when I was the Attorney General of Sri Lanka. I always thought that the Rule of Law essentially protected the rights of law abiding citizens, and whenever there was a danger of their rights being transgressed, the law should come hard on the transgressors, of course, within the limits of the law.

It is in that context that I would be dealing with the Role of the Attorney General of Sri Lanka (AG) in enforcing the Rule of Law.
The AG of Sri Lanka is the Chief Law Officer of the State and performs a function in respect of the implementation of the law, uncontrolled by any authority. The AG is the only authority, other than, of course the Commission to Investigate Allegations of Bribery or Corruption who can decide whether a person should be indicted for an offence or not. Neither the President, nor any member of the Government or even the Supreme Court could lawfully direct the AG to file or to refrain from filing an indictment against any person. Whenever the Supreme Court finds that certain Police Officers have violated the fundamental right guaranteed by Article 11 of the Constitution, by torturing any person, the order is conveyed to the AG to consider indicting the suspect, if the AG is of the opinion that the material disclosed the commission of an offence in terms of the Convention against Torture and other Cruel, Inhumane or Degrading Punishment Act, No. 22 if 1994. There has never been a direction to AG to file indictment. It is the exclusive prerogative of the AG to decide on the material submitted to him by the investigators, whether a person should be indicted or not. It is said that the AG exercises a quasi -judicial power in this respect.

There cannot be any supervision by any Executive Authority over the power of the AG to institute proceedings against a person before the High Courts. The decision to indict a person is taken by the AG on a careful and objective analysis of the facts and law, free of any prejudices or influences.

There has been only one instance where the decision of the AG to indict a person had been challenged by way of a Fundamental Rights application. The Court did not find fault with the decision of the AG to indict the suspect on that occasion. The fact that a person is acquitted after trial does not in any way indicate that the decision of the AG to indict was wrong. The decision to indict is taken after a careful analysis of the material available on paper. The ultimate outcome of the trial depends on many other matters including the advocacy of Defence Counsel and the independent decision of the presiding Judge or the Jury over which the AG has no control.

Nolle Prosequi and its abuse
The AG enjoys the right to enter a Nolle Prosequi in respect of an offender, which was a right enjoyed even during the period of the British rule. This is a right that has come as a practice enjoyed by the AG and the AG alone. The only legal provision that statutorily recognises this right is where it is provided in the Code of Criminal Procedure Act that the entering into a Nolle Prosequi is a right that the AG cannot delegate to any other officer of the Department. Usually, in Sri Lanka, Nolle Prosequi entered by the AG is accepted without question. The Nolle Prosequi in Sri Lanka is entered by the AG on reasons of policy, though in his opinion, the material justifies a criminal prosecution.

The right of the AG to enter a Nolle Prosequi should not be confused with the power enjoyed by a prosecuting officer to withdraw an indictment or any charges therein. The prosecuting officer is entitled to seek the permission of court to withdraw an indictment at any stage of the proceedings, and such withdrawal is possible only if Court, for reasons recorded, permits the application of the prosecuting officer.

Court can always refuse an application by a prosecuting officer to withdraw an indictment already filed in court. That is why I have constantly expressed the view that no allegation can be made against the AG for the withdrawal of any indictment before court. The prosecutor will have to convince court that his application is based on substantial ground. It is only then that the prosecuting officer would be entitled to withdraw the indictment. Sometimes it has been said that indictments against certain individuals were withdrawn by the AG due to political influence. However, those statements are made on the misconceived notion that the AG is entitled to withdraw an indictment on his own. The only way the AG can discontinue a prosecution before the High Court, independent of the presiding Judge, is where he enters a Nolle Prosequi. In recent times, to the best of my knowledge, there have been no instances where a Nolle Prosequi was entered by the AG. All withdrawals of indictments filed before court were with the approval of the presiding Judge.

With the 19th Amendment to the Constitution, the AG is appointed by the President, on the recommendations of the Constitutional Council. This is a move to ensure that the President has no exclusive authority in the appointment of the AG, who, as I stated, exercises a tremendous amount of authority in the enforcement of the law which sustains the Rule of Law.

Unlike in most other Commonwealth Jurisdictions, the AG of Sri Lanka does not exercise any supervisory control over Police investigations, which is considered to be the function of the Director of Public Prosecutions, an office that existed under the Administration of Justice Law, but was later abolished. However, in the interests of justice, AG, as the Chief Law Officer of the State, has intervened, and advised the Police in respect of ongoing investigations, either at the request of the of an aggrieved party or the Police or on his own initiative, where it is thought that the intervention of the AG was necessary in the interests of justice.

Advice of AG
On numerous occasions, our courts have held that the Police should seek the advice of the AG in the case of complicated investigations before arresting or proceeding to institute action before the Criminal Courts.

When the late Mr. Tyrrel Gunatilake was the DIG in charge of the Criminal Investigations Department, he insisted that the investigators be in close contact with the officers of the Attorney General’s Department in order to ensure an efficient investigation in the interests of justice. This practice is followed up to date by the Criminal Investigations Department. The Criminal Investigations Department, sometimes refers the file to the AG after recording the 1st complaint, seeking advice as to whether it discloses a matter that needs further investigation. When I was a junior officer of the Department, there was a circular directing us to advise on such files within two weeks of receipt. By this method, a great deal of cases which did not need any further action were closed with the 1st complaint. We decided that most such matters were civil transactions and that no criminal offence is disclosed. Though the power to supervise police investigations is not conferred on the AG like in the case of the Director of Public Prosecution, AG has over the years, based on judicial pronouncements and the provisions of the Code of Criminal Procedure Act, stepped in where intervention was necessary in the interests of justice.

The AG of Sri Lanka, over the years, has commendably performed this function, intervening wherever the intervention of the AG was required in the interests of justice. The Code of Criminal Procedure Act specifically authorizes the AG to advise the Police on complicated investigations on the request of the Police or on his own initiative.

In Sri Lanka we have had a greater link with the Police and had played a prominent role in the institution of prosecutions. The Attorney General’s Department established a Non Summary Unit in 1998, but it was abolished in 2009. My personal view is that, that unit should be re-established and the AG should take greater control over the prosecutions in the Magistrate’s Courts.

When Ms. Navanethem Pillay, United Nations High Commissioner for Human Rights visited Sri Lanka in 2014, met me as the Attorney General of Sri Lanka, and I explained to her the role played by the Attorney General in respect of Police investigations into sensational crimes. A few days before her visit, or during her visit, there had been an attack on the residence of a journalist, which was given wide publicity in the media. While I was explaining to her the role of the AG to ensure fair and just investigations she interrupted me and said, “Mr. Attorney General, I have read in the media about an attack on the residence of a journalist, what action do you hope to take about it ?” Without any response to that question, I turned to my officer in charge of administration and requested that the file I had opened the previous day, be sent to me immediately. It was brought to my chambers during the interview and I gave the whole file to her. It was a file opened on a paper cutting, with a minute from me to the Criminal Division, instructing that the file be opened immediately. The file contained a minute from me to a senior officer to take immediate action to get in touch with the police and to ensure impartial and expeditious investigations, and to keep me informed of the progress. Having read the file, her immediate and spontaneous response was, I must commend you for this.

Petitions from the public
The Department of the Attorney General has also a special unit called the MP Unit, which entertains petitions from the public seeking intervention of the AG where there is abuse in the process of law enforcement. In addition, an Attorney at Law, usually is entitled to make a representation to the AG on behalf of his or her clients, where the intervention of the AG is necessary, in the interests of justice. Such communications from Attorneys at Law, were entertained at any stage of the investigations. The communications were entertained from suspects as well as victims of crime. The purpose was to ensure that the enforcement of the law was not abused so as to defeat the interests of justice.

The enforcement of the law to its optimum efficiency, requires a coordinated effort by all those involved in the law enforcement process. The Judiciary, the Official Bar, the Unofficial Bar and the Police Department play important roles in this process. Out of all such agencies, the role of the AG and his Department is of utmost importance. I would, without the faintest hesitation state that the AG plays a pivotal role in the whole process. As I pointed out earlier, the delay involved in the judicial process is not due to the fault of any party. It is an inbuilt delay that nags the litigant. The AG is the only authority, who could legitimately intervene to ensure that justice is meted out where it is necessary.

Recently when my good friend, Retired Senior DIG and Attorney at Law, Leo Perera passed away at the Police Hospital, I have been informed that the Medical Officers firmly requested the Police that no arrest should be made without the material first being submitted to the AG. I was personally informed by the Medical Officers that they were able to take that firm stand due to the instructions to the police by the AG that the material should be submitted to the AG before an arrest of a Medical Officer where a patient dies under the care of such Medical Officer. In the instructions sent to the Police, it is specifically stated that it did not apply to cases of suspected illegal abortion.

Where a patient dies while being treated by a Medical Practitioner, whether the evidence discloses a case of criminal negligence that warrants, an arrest is a complicated issue a police officer would not be competent to decide. If the suspect Medical Practitioner is arrested on the basis of the first complaint and he or she is remanded for the purpose of further investigations, that would cause irreparable damage to a person who may be totally innocent of any offence.

The Private Medical Officers Association made representations to the AG since a Medical Practitioner had once been arrested and that had caused much concern to the members of the Association. There is no doubt that the instructions of the AG is convincing proof of an instance where the intervention of the Chief Legal Officer of the State has strengthened the Rule of Law, leaving no room for abuse of the process.

The Criminal Justice System in any country should be ruthlessly efficient in its pursuit of violators of the criminal law. Law abiding persons within the territory should be ensured of the protection of the law. No room should be left for offenders to believe that the law is incompetent to deal with them and that deficiencies of the law would provide them with ample opportunity to violate the law with impunity. The culture of impunity for whatever reason must be replaced with a culture of accountability. Those who are guilty of violating the law should be dealt with through a transparent, fair and expeditious process.

Strength of the Rule of Law
Equally important however, it would be, to ensure that abuse of the process for whatever reason, does not result in the incarceration of innocent persons with no expeditious remedy. If that is the case, it is tragedy to be mourned, and should be avoided utilising all the strength at our command. That in my view, sums up the purpose and the strength of the Rule of Law. The role of the AG of Sri Lanka in achieving this objective cannot be underestimated under any circumstances. The AG is an impartial and independent officer who exercises an authority that permits him to grant expeditious and efficient relief that cannot be secured from any other authority.

Let me refer to two incidents that occurred during my tenure as the AG that demonstrates the role AG can play in ensuring the protection of the Law to innocent persons. A Chief Legal Officer of a Bank, met me around 4.00 p.m with several of her legal officers in the company of Mr. Yuwanjan Wijayatilake, PC., the then Solicitor General. Her complaint was that a police station conducting investigations into an over payment is due to arrest two young clerks of the Bank without any evidence of being concerned in the commission of a criminal offence. I, immediately, through the Police Post, got in touch with the Senior DIG of the area and informed him of the situation and instructed that early the next day, the investigating officer with a Senior Police Officer should meet me with the notes of investigation, and that no arrest should be made until I decided on the material.

Early next morning, with the notes of investigation, the investigating officers were present at the Department, and I opened a file and specially allocated it to a very senior officer of the Department, to go through the material and report to me that very day. Within one hour, the senior officer of the Department met me stating that there wasn’t even an iota of evidence. I addressed a letter to the Senior DIG under my hand, informing of my decision having perused the material, and requesting the investigations be proceeded with, but no arrests should be made without the AG considering the material.

The second incident was where a young Magistrate, who was not a Sinhala Buddhist, called me one afternoon, and all that he told me was “I cannot sleep tonight.” He then told me that a young Buddhist Priest was produced before him under the Antiquities Ordinance on a charge that he had committed an offence of tampering with an archeological site. He said from the moment he saw the Priest he felt he was a saint, I am sure what he meant was an Arahath. What the Priest had done was to clear a small area in the forest and put up a small hut where he meditated. The Magistrate said, I had no jurisdiction to grant bail and I am with a heavy heart. His request was to look at the material and decide whether an offence under the Antiquities Ordinance is disclosed. He said the Officer in Charge of the investigating Police Station has already been directed to meet me with the notes of investigation. The following morning a file was duly opened and allocated to a senior officer who reported back that there is no material to show that any damage was caused to an archeological site, or that there was evidence of the commission of an offence. The discharge paper went that very day under my name and a copy was faxed to the Magistrate. The Priest was duly discharged the very day.

I thought that I would refer to these two incidents, since this was a method adopted by the late Mr. C.R. de Silva when he was Head of the Criminal Division. Wherever there was a deserving case where the intervention of the AG was necessary, Mr. De Silva took bold steps to intervene.

While thanking you all for your presence on this occasion, let me conclude expressing my confidence that the role played by the Attorney General over the years would serve to strengthen the Rule of Law with greater intensity in the years to come.

Complete speech is below;

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