Attorney General in the dock

Another AG carving a career path?

Those supporters of the Yahapalana Regime whose apologies have diminished to the point they take refuge in what I call the ‘At Least Thesis’ in the now tired game of comparison, have rightfully found some fuel in the recent assertiveness of the Attorney General’s Department.  The reference is of course to the uncompromising positions taken by Additional Solicitor General Dappula De Livera and Deputy Solicitor General Milinda Gunathilaka in questioning witnesses before the Presidential Commission of Inquiry (PCoI) into the Central Bank bond issue scam.

What’s missing in the adoration is something, anything, on the highly irregular operations of the Attorney General himself.  So when it comes down to it, the obvious courage, conviction and argumentative skill of subordinates have been deployed selectively, i.e. to attack a man who has by his own actions and words implicated himself.  That’s Ravi Karunanayake.

The Attorney General, Jayantha Jayasuriya, stands accused of not just being negligent of responsibilities with respect to protecting the sovereign rights of the citizen but aiding and abetting an executive and legislative move to rob those very rights.  

The issue at hand is the Provincial Councils Elections (Amendment) Bill, where Parliament enacted a law using an observation issued to the Speaker by the Attorney General.  

The Bill, as has been argued both in petitions challenging its constitutionality and in newspaper comment, sought to bypass a ruling of the Supreme Court and moreover violated established Parliamentary Procedure that clearly violated provisions to safeguard the people’s sovereignty.  The text that was voted on was smuggled in at the 3rd reading and contains provisions that were not in the original bill.  Moreover the smuggled version was not on the Order Paper and was not submitted to an Standing Committee or a Committee convened by the Speaker.  

What is appalling about the entire affair is the opinion expressed by the Attorney General.  To support what has to be considered the will of the Government that sought to pass the bill in the first place, Jayasuriya has quoted Erskine May, the well-known authority on parliamentary practice.  He claims that Erskine May had stated on page 547 of the 24th edition of his oft-quoted book ‘Parliamentary Practice’ “as in other matters of order, the admissibility of an amendment can ultimately be decided only by the House itself, there being no authority which can in advance rule an amendment out of order.”

The statement has at least a couple of riders.  The first is ‘ultimately’ which implies that decision has to be preceded by deliberations which may include opinions from outside the House.  The very fact that Jayasuriya was called upon to comment supports this thesis (as per functions detailed in Article 77 of the Constitution).  The last part itself is open to multiple interpretation, i.e. the caveat regarding advance ruling.  The ‘authority’ that can submit such a ruling is the Constitution and safeguards therein. 

The submission of former Chief Justice Sarath N Silva to the Supreme Court on this matter reveals two important facts.  First, the quote used by Jayasuriya is NOT ON THE QUOTED PAGE.  Second, as pointed out by Silva, Jayasuriya has (deliberately?) omitted the relevant caveats that May himself has couched the quoted statement in.  

In particular Jayasuriya has ignored the condition that amendments bought at any stage of the process should be within the framework of the original text and be relevant to the objectives therein.  The original bill was about women’s representation but the amendments brought in late were irrelevant to this.  It is strange indeed that Jayasuriya seems to have missed this.

Since he has quoted an authority, let us submit a rider imposed by another.  Sir George John Bourinot, following May, opines that ‘The law on the relevancy of amendments seems now to be that if they are on the same subject-matter with the original motion, they are admissible, but not when foreign thereto.’   

As such, either the Attorney General is ignorant or mischievous, the evidence pointing to the latter rather than the former.  At the end of the day the Speaker has been misled. 

The matter is in court.  We can say ‘let the court decide,’ but let us interject a few observations about law-making in this country, in particular the strange behavior of those who held the office of Attorney General and Chief Justice.

Although it is common for lawyers to obtain from British parliamentary traditions and British legal system in general, there has been a scandalous reluctance to note the difference between Britain and Sri Lanka with respect to the separation of the Attorney General’s Department from the Courts.  In Sri Lanka, unlike in Britain, senior members of the AG’s Department are ‘positioned’ in the courts, especially the Supreme Court.  Not surprisingly, those positioned thus are elevated to the post of Chief Justice.  There have been cases where lawyers are elevated to the post of Attorney General and thereafter quickly shifted to the Supreme Court and then the position of Chief Justice.  

It is a well-established career path, one might say, but one which carries the requirement of affirming (as per Article 77) proposals for constitutional tinkering submitted by the executive.  If the careers of judges in the Supreme Court are examined alongside the rulings they’ve made while in the Department and later as judges, an argument would probably arise for the separation of the two services, both which carry responsibility to the people.  

For now, this ‘history’ casts a shadow on every person appointed as Attorney General in terms of the well known dictum ‘justice should not only be done but seem to be done.’  If the case at hand raises suspicion, then among other things this history should to be blamed.  Over and above all of this, the negligence of Attorney General Jayasuriya points to scandalous deceiving of the Speaker and demonstrates an unwillingness on his part to represent and act for the people in the Republic of Sri Lanka.

Malinda Seneviratne is a freelance writer. Email: malindasenevi@gmail.com