Public Criticism Of The AG’s Department Can Undermine Confidence In The Administration Of Justice

By Javid Yusuf –AUGUST 25, 2017

Javid Yusuf

The Attorney General’s Department  has increasingly come under the  spotlight in recent weeks particularly after the Commission to inquire into the controversial Central Bank Bond issues has started functioning. This is mainly due to the members of the AGs Department team succeeding in eliciting hitherto unknown aspects of the whole Bond exercise before the Commission whereas it is reported that in the case of investigation files numbering over 70 sent to the AG, no indictments have been filed despite nearly two years having elapsed since such investigations began.

The latter aspect has been troubling civil society activists and even some Ministers  who have been raising the issue for the past year without getting any answers giving rise to speculation about deals being struck and deliberate inaction on the part of the AGs Department.

However in the past few weeks many UNP Parliamentarians have begun publicly questioning the failure to file indictments in respect of the 70 plus investigation files in the custody of the AG. This cry has reached an increasing intensity after they have observed the AGs Department team before the Commission of Inquiry being able to lead startling evidence relating to the Bond issue as well as that relating to the Penthouse leased out by former Minister Ravi Karunanayake’s family.

Not surprisingly  UNP MPs have now begun to feel uncomfortable and  are questioning the actions of the AGs Department  before the Commission contrasting the perceived inaction of the Department in relation to the 70 plus files.

Such a comparison seems unfair by the AGs Department without knowledge of the full facts relating to the 70 plus files  being in the public domain. In contrast the AGs Department’s conduct before the Commission can be easily understood. The AGs team has been assigned to assist the Commission and such assistance is rendered under the supervision and direction of the Commission.

In fact before any witness is called Counsel has to satisfy the Commission with regard to the purpose and relevance of the evidence sought to be led and only if the Commission is so satisfied will it allow such evidence to be led. No Commission, Court or Tribunal allows evidence to be led at the whim and fancy of the AG or any other Counsel. As evidenced by what has transpired before the Commission it is manifestly clear that such is the case in this Commission too. The Commission can also on its own motion direct that particular witnesses can be called.

In the case of the 70 odd files the public has to grope in the dark without any information with regard to what has happened. Clearly the Attorney General cannot hold a Press Conference and explain what has or has not happened as investigation details and matters relating to such investigation can only be made public in the proper forum, namely the Courts, at the appropriate time. But what should have been done  is for the Minister in charge of the Attorney General’s Department  Mr. Wijeyadasa Rajapakshe to call for a progress report with regard to the action taken and report to Parliament.

This was necessary from two points of view. One is the right of the public to know and secondly to protect the Attorney General and his officials from unfair criticism.

The Justice Minister (now relieved of his portfolio ) has declared that he cannot direct the AG as to who should be prosecuted and not be prosecuted as it would  amount to exercising improper influence. One could not agree with him more. However he has to reconcile this with his statement made several months ago that he would not allow the former Defence Secretary Gotabaya Rajapaksato be arrested. The currently agitated UNP Parliamentarians should have taken him to task at that time as that too would have amounted to undue interference.

It is an essential feature of the Rule of Law that the Attorney General  be allowed to function independently. His is a quasi judicial role and is different to that of other public officials in as much as his actions can eventually affect the rights of citizens. Any public criticism of him and his officials in the conduct of their duties must be avoided more so by Parliamentarians and Politicians in order to ensure public confidence in the independence of the administration of justice. There are many accepted practices by which any concerns can be raised such as making representations to the Attorney General or canvassing his decisions before an appropriate Court.

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