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Govt must assure the public of the independent status of the Attorney General

By The Friday Forum

The Friday Forum is an informal gathering of public spirited persons wishing to contribute to the future development of Sri Lanka within a framework of democracy, social justice and pluralism.

The Forum brings together a diversity of expertise and viewpoints reflecting its membership consisting of academics, various professionals, retired diplomats and civil servants, educationists, leaders of civil society organizations and leading personalities from the private sector. Furthermore, our membership reflects the diverse ethnic and religious composition of Sri Lankan society. The forum meets regularly to discuss issues of public concern and to make interventions in the public interest.

One of the key areas of concern of the Friday Forum is the preservation of the integrity of independent institutions. It is clear that the proper functioning of those institutions, such as the independent commissions recognized by the Seventeenth Amendment to the Constitution, is essential for democratic governance and to preserve a democratic way of life for the people.

We have noted with concern the current status of the Attorney-General’s Department (AG’s Department) consequent to the Gazette Extraordinary No.1651/20 of April 30, 2010 on the allocation of subjects to various ministries. The AG’s Department, which has traditionally come under the Ministry of Justice, finds no mention in the Gazette notification either under that ministry or elsewhere. The necessary implication under Article 44 (2) of the Constitution is that as an unallocated subject or function the department automatically comes under the purview of the President. So far, the government has neither confirmed that the AG’s Department has come within the purview of the President nor officially disclosed the reasons for changing the long standing convention affiliating the Department with the Ministry of Justice.

That in a democracy, the Attorney-General should not only function but must be seen to function in an independent manner cannot be emphasised more. The Supreme Court of Sri Lanka has, in no uncertain terms, recognized and affirmed the independent role of the AG (Land Reform Commission v. Grand Central Ltd. [1981] Sri LR 147).

The AG is the custodian of the Rule of Law and of the public interest in a democracy. The functions of the AG must always be informed by no other factor or consideration than the upholding of the public interest and the Rule of Law. Even in countries where the Attorney-General is a political appointee, there is an expectation that the holder of that office must act independently of the Executive, especially in prosecutorial functions, because to do so otherwise would negate the preservation of the Rule of Law and the public interest.

If the Attorney-General, in discharging the functions of office, provides legal advice to the government or engages in the prosecutorial function in a non-independent manner, moved more by political and partisan considerations, the Rule of Law is defeated and the public interest stands desecrated.

The AG is also the head of the Bar—not only of the Official Bar as one would think, but of the entire Bar. At ceremonial sittings of the court, the AG sits representing the entire Bar. As such, it is the AG’s duty to protect the integrity of the legal profession. It also follows then that the AG has to ensure the protection of judicial independence which is indispensable to the proper functioning of the Bar. If the office of the AG itself is not independent then those objectives cannot be achieved.

The appointment and removal processes of the AG under the current law confirm the independence of the office of the AG in Sri Lanka . The appointment of the AG falls within the 17th Amendment to the Constitution. The President has to obtain the approval of the Constitutional Council to appoint the preferred nominee. The removal of the AG has to be done under terms of the Removal of Officers (Procedure) Act, No. 5 of 2002. Accordingly, the AG holds office during good behaviour (as opposed to at pleasure) and can be removed only by Parliament on specific grounds after inquiry.

Over the past decades, the politicization of the Office of the Attorney-General has been observed with alarm. We have watched successive Attorneys-General go before international forums and defend the position of the government of the day, even when doing so defeated the rights of the people. We have watched charges against political dissidents expedited and charges against the powerful dropped or delayed.

In this post-war era, where public expectations of the State’s commitment to the Rule of Law are very high, and where the restoration of law and order is viewed as an indispensable element of the development process, it is imperative that the public has confidence in the office of the Attorney-General.

Therefore, we urge the government to assure the public of the independent status of the Attorney-General. At a minimum, we urge that the Department be affiliated with the Ministry of Justice as was the norm. Ideally, now that constitutional reform is again on the political agenda, we propose that the AG’s Department be brought under Article 52 (2) of the Constitution so that it is treated on par with the Departments of the Auditor General and the Elections Commissioner, Offices of the Parliamentary Commissioner for Administration (Ombudsperson), the Secretary-General of Parliament and the Secretary to the Cabinet of Ministers, which means that it is no longer treated as a department of government.

We urge the incumbent Attorney-General to heed public concerns and take every possible measure to demonstrate to the public that he is guided only by the Rule of Law and the public interest.

We make this earnest appeal in a spirit of constructive engagement having as our sole objective the interests of the country.


Bishop Duleep Chickera,
Jayantha Dhanapala,
Prof. Arjuna Aluvihare,
Prof. Gananath Obeysekere,
Harin Malwatte,
Dr. Anura Ekanayake,
Prof. Savithri Goonesekere,
Chandra Jayaratne,
Dr. Jayampathy Wickramaratne,
Dr. Nimal Sanderatne,
Dr. Devanesan Nesiah,
Dr. A.C. Visvalingam,
Ranjit Fernando,
Dr. Selvy Thiruchandran,
Manouri Muttetuwegama,
Sithie Tiruchelvam,
Lanka Nesiah,
Dr. Ranjini Obeysekere,
Jezima Ismail,
Shanthi Dias,
Dr. Stewart Motha,
Damaris Wickremesekera,
J.C. Weliamune,
Ahilan Kadirgamar,
Dr. Camena Gunaratne,
Prashan de Visser,
Dr. Deepika Udagama


If the altruistic call of the more initiated in the country on issues of such import is to be ignored this is nothing short of the slow and engineered death of democracy and all that is associated with it in a country once held in esteem globally as a healthy and exemplary society.

That this patently wrong path is dared with intent to the undue benefit of a selected few against an entire people need not be emphasised.


Posted by: Ilaya Seran Senguttuvan | June 30, 2010 04:30 PM

It is now a bye and a bye time for the common man / women, they have said a hearty goodbye to all the democratic freedoms they have been enjoying.

They deserve it for their blind loyalty. a j.

Posted by: anthony jones | July 1, 2010 12:15 AM

I counted 27 people, hope I did right. 27 endangered ones.Try hard.
Only thing I learned in SL is counting and some reading too.

Posted by: Fran | July 1, 2010 11:22 AM

I read this petition like article only recently owing to ill health. I respectfully request the signitories to the above to consider the following comment and make their own statements with regard to the advice to the present Govt. that they have already made.

I was a student of the great Constitutional Law Pandit J.A.L. Cooray, who also was an admirer of Hon E.W. Perera who knew the double standards of AGs.

Starting with Sir Alexander Johnston-the first Chief Justice's time , read the comments, criticisms and the decisions of the respective AGs and tell the public who was better than or worse than or equal to the present day's AGs.

Read how they refused to permit the ordinary citizens to file defamation cases and others where according to laws of mother Lanka AGs permission- which was the last word- without reasons- was a necessary imperative owing to political pressure.

Dear Sirs and ladies,
You might belong to a special class so called. While admiring your stance to correct the present Govt and the AGs , I want you to know that small people like us watch you and come to the conclusion that you get together when it is to your advantage and talk differently on public issues when you do not want to be unpopular with a so called a spl class of intellectuals. Kindly read the history of AG's Dept with spl emphasis to comments by Hon E.W. Perera and the specialist JAL COORAY on AGs of the past.

Posted by: Amarekone Mudiyanse | December 22, 2010 01:52 AM

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