Editorial Courtesy The Morning

The concerns expressed by the Government with regard to the Attorney General’s (AG) Department’s duties concerning the legal proceedings into the assassination of former newspaper editor and lawyer Lasantha Wickrematunge have sparked debates on social media platforms, the general society, and in the political arena. While some encourage the Government’s interest in intervening in the matter, claiming that such is necessary at times to ensure the upholding of the rule of law, some point out that any intervention in the AG’s Department’s duties has the potential to undermine the rule of law.

The origin of these concerns is AG, President’s Counsel Parinda Ranasinghe Junior’s recent announcement that the AG’s Department had decided to refrain from pursuing further legal action against three suspects in the case of Wickrematunge’s assassination. The lack of evidence had been quoted as the reason. The decision, which triggered widespread public furore, exerted pressure on the Government, including due to Wickrematunge’s case being a highly controversial one and because of the delays which had incurred in investigating the case, and the Government had promised to punish all culprits in the case. In response, the Government led by the President held meetings with the relevant parties including the AG, the outcomes of which were not officially disclosed.

However, the AG had informed the Court this week that the department wishes to temporarily suspend the earlier decision. What prompted this new decision is concerning because it comes at a time when the Government seems to be taking the court of public opinion’s thinking seriously. Just a few weeks ago, the AG’s Department had pointed out a lack of evidence to pursue legal action against the suspects in question. If there was no evidence then, a question arises as to whether new evidence emerged within the past few weeks or whether a new method has been invented to pursue the said legal action without adequate evidence. Court proceedings in high-profile cases like these depend considerably on the AG’s Department’s instructions, and when it comes to a case that has caused widespread controversy and has remained unresolved for over a decade, the AG’s Department’s instructions cannot be ignored. In such a context, the AG’s Department going back on its instructions, which were defended by the department on several occasions, raises a question about what the Mount Lavinia Magistrate’s Court should believe now.

According to the Constitution, the Executive, nor the government has a right to interfere in the AG’s Department’s functions, especially in a context where the latter cannot act against the existing laws and without adequate evidence. Although the AG’s Department’s previous decision could be controversial in the eyes of the public, the AG’s Department’s decisions do not have to be public-friendly, but rather, in accordance with the Constitution and other relevant laws and policies which represent the democratic rights of the public in a more transparent manner. The Bar Association of Sri Lanka has also expressed jurisdictional concerns about the situation, noting that although media reports suggest that the Cabinet of Ministers may be considering a review of the AG’s decision regarding the matter, the AG is a public official who is accountable to the public for his decisions.

While there have been long-standing concerns about how the AG’s Department has discharged its duties. Government intervention, such as what is being announced, can also undermine the integrity of the AG’s Department’s duties and jeopardise the rule of law. Such interference threatens the independence of the legal system and risks transforming legal processes into political tools. The AG’s Department is meant to operate impartially, free from political pressure, and any attempts by the Government to influence its decisions could lead to a breakdown in the public’s trust in the justice system. When the AG’s Department makes decisions based on the law, it is not its role to appease the public opinion or political agendas but to uphold justice within the boundaries of the law, however unpopular those decisions may be. However, the behaviour of the department over the years cannot also be overlooked, public trust in the justice mechanism and belief in the rule of law is also important for a democracy.

In this context, the Ministry of Justice had decided to establish an Independent Prosecutor’s Office. The Government said that to begin the process, an experts’ committee will be appointed to address key issues regarding the creation of such an office. The committee will comprise prominent legal figures, including the AG or his representatives. The AG’s Department at present has three key duties – criminal prosecution, advising the Government, and representing – in keeping with the AG’s discretion – the Government or Government officials in certain cases, which, depending   Therefore, it is a good move to set up a separate criminal prosecution office, which would help resolve potential conflicts and ensure the independence of legal processes. This move would better serve the interests of justice by enabling a clearer separation of powers and by eliminating any undue political influence over the prosecution of criminal cases.