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New laws must be made to ensure the independence of the Attorney General: Jayampathy Wickramaratne

Jayampathy Wickramaratne 700 02

Dr. Jayampathy Wickramaratne has observed that there was a dire need to bring in new laws to make the Attorney General’s Department an independent institution. It was not easy to make constitutional changes but certain laws could be changed.

He made this observation addressing the committee stage budget debate in Parliament when the expenditure heads of the Ministry of Justice and Prison Reforms and the Ministry of Public Administration and Disaster Management was taken up.

During his speech, Jayampathy Wickremaratne said:

“It is the President who suggested the names for the post of AG and generally the AG was bound to represent the President in any case. Then invariably there was a suspicion regarding the independence of the AG.

Even though the President could nominate judges for the Supreme Court or the Appeal Court, the selection process should be taken out of the President’s hands.

The advice of the Justice Minister, Chief Justice or the senior lawyers of the Bar Association and the AG’s Department should be sought in making those appointments. Otherwise, a question would arise regarding the independence of such persons.

In the instance where parliament was dissolved by the President, it is a question whether the President had obtained the advice of the AG. But we don’t see that he did so. However, the AG had to defend the President’s decision in court. In that instance, the AG regarded the President as his client and acted in his best interest.

Although several parties claimed that there were no provisions in our Constitution for the setting up of special courts, the Justice Minister proved that it could be done and these special courts were set up. However, in spite of these special courts being set up there is a question as to whether there are enough cases for these courts. Hence attention should be focussed on this matter.

I appeal to the Attorney General’s Department not to attempt to win cases based on technical evidence. The AG’s Department must take the example set by Former Attorney General K.C. Kamalasabesan, who had advised his staff that people file FR petitions because they had faced some injustice and, therefore, they should not try to dismiss such cases on technical grounds.

Although the AG is the advisor to the government, lately, the government and the President had taken certain actions without the knowledge or advice of the AG and placed the AG was in a quandary.

According to the Constitution the AG should be named a party in every FR petition. If a case is to be filed against the President, then it should be done under the AG’s name. However, this does not mean that the AG is obliged to protect the President compulsorily. What is required is that the AG expresses his independent views to the court.

What is required is that the AG expresses his independent views to court as an amicus of the court. In this situation, we might even have to change certain paragraphs in the 19th Amendment, especially in situations like the past 52 day controversy.”





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