The need for ‘hard’ questioning of the state

Sunday, November 29, 2015

Even with all the crestfallen realism which now informs the public mood close upon one year into the classic curate’s egg performance of the Sirisena-Wickremesinghe government, there is some cause for optimism.
‘Hard’ questions of democratic governance are forcefully and publicly interrogated as opposed to earlier discussions which took place in elite circles with little impact on national debate.

Exposing the ugliness
One of these excruciating questions concerns the role and performance of the Office of the Attorney General. Increasingly impatient with theoretical pontifications, the focus now is rather on the accountability of the Office. This is particularly so in the wake of public conflicts between senior officers of the Department as to whether or not to prosecute Avant Garde, the controversial maritime security company.

This week we are informed that the corrupt tentacles of this company reach not only across the political divide but also include journalists on its payroll. It may be good if the bandage on this festering wound is just ruthlessly stripped away to let the public take precise stock of the ugly nature of gargantuan profiteering.

That apart, those preoccupied with disputes concerning the transparency of the Attorney General’s Office may take heart from the fact that similar perplexing questions are being discussed in the region. For instance, the role and function of the Attorney General of India (AGI) in regard to the Indian Right to Information (RTI) law is now gripping public interest across the Palk Strait with the judiciary itself indicating different opinions on the matter. Interestingly enough, this has surfaced as a result of efforts by the AGI to claim exemptions from the reach of the RTI law following an application filed in the public interest.

The role of the AGI and RTI
Ruling on the dispute initially, the Indian Central Information Commission (CIC), which oversees the performance of state authorities under the RTI law, held that the AGI is a lawyer for the State and was therefore not covered by RTI. On appeal to the High Court, this stand was contested on two distinct points. First, that the office of the AGI is established by virtue of Article 76 of the Constitution of India and that the AGI is therefore answerable to the people of India. Second, that the right to information is a fundamental right under Article 19(1)(a) of the Constitution of India. Consequently the RTI Act must be interpreted in furtherance of that right.

Upholding the appeal, a single judge Bench of the Delhi High reversed the decision of the CIC this year, affirming that the AGI is a ‘constitutional authority’ and discharges public functions. The Court took pains to emphasize the fact that the AGI is not only a constitutional functionary but is also an ‘authority’ in that it is an office that is conferred with statutory and constitutional power. Writing for the Court, Vibhu Bhakru J in an admirably reasoned order, pointed out that ‘merely because the bulk of the duties of the AGI are advisory, the same would not render the office of the AGI any less authoritative than other constitutional functionaries.’ The expression “authority” in the Indian RTI law cannot be read as a term to exclude bodies or entities which perform advisory functions. Whatever exceptions claimed by the AGI relating to legal opinions delivered to the government and so on must be covered under general exceptions to the RTI law. Special privileges cannot be allowed.

Immediately challenged by the Central Government, a Divisional Bench of the same Court stayed the operation of the order and fixed the matter for further consideration. The dispute has led to intense public debate between legal practitioners, judges and RTI activists. Disconcertingly, this is in the context of formidable challenges currently posed to the Indian RTI movement including what are alleged to be politically partisan appointments to the Information Commissions. For long a powerful advocate of RTI as a peoples’ tool, India is now facing the undermining of that very movement from within.

The accountability of the AG
These are discussions that are relevant for Sri Lanka as the country anxiously expects the tabling of its own and long promised RTI Bill in Parliament. It is a matter of general principle that no one Department of the State can claim blanket immunity from the public right to know. There can be little debate about that.

Other misapprehensions persist. Foremost among these is that the Attorney General is immune from legal review. This is not the position of the law at all. Traditionally, this discretion has been reviewed only in exceptional circumstances. But this old principle of judicial non-interference in the English law has long since yielded to harsher scrutiny of prosecutorial authorities. Thus if the state law officer acts in abuse of the legal process or behaves oppressively, the court would intervene. In Canada, expert committees are set up to lay down guidelines for the exercise of prosecutorial discretion.

Sri Lankan judges have asserted that judicial review of prosecutorial discretion exists where the evidence is plainly insufficient to justify that decision. The decision to indict or not to indict must be taken reasonably and not arbitrarily. Applying theory to practice therefore, the AG’s failure to indict in the Avant Garde case is legally challengeable. It however needs a court that is both courageous and possessed of considerable jurisprudential capacity to respond. This is the core concern that Sri Lanka currently faces whether in regard to addressing corruption or war time accountability.

Looking back honestly at past failures

Regardless, we need to see informed and measured debates on the role of the Attorney General, not only in regard to the contemplated RTI law but also in general. We have the Bar Association issuing warnings about the ill wisdom of summoning senior state law officers before Parliament. On the other hand, ruling parliamentarians wax eloquent that Parliament is supreme and can summon any official. But verbal duels of sound and fury signifying precious little and with character assassination thrown in for greater crudity do not help
Evaluation of the performance of the Attorney General must be part of solid institutional reform, looking back honestly enough at past monumental failures of justice. Without such ‘hard’ questioning, all the progressive laws in the world will certainly not help us.