Holy Duties Are Bestowed Upon Unholy Men; AG Vs. EC

By Ashan Nanayakkara –MAY 18, 2020

Ashan Nanayakkara

Writer acclaims the act of valor shown by one of the Commissioners of Election Commission (EC) of Sri Lanka, Prof. S. Ratnajeevan H. Hoole to pen down on, what indeed transpired between the EC and the Hon. Attorney General (Hon. AG) in the process of retaining a Counsel for the Appearance in Case No. SC/FR/83/2020 (Charitha Gunarathne vs. Election Commission and et al.) and for other connected matters coming up before the Supreme Court, all of which have filed to prevent the General Election amidst this pandemic. According to what the media reported, the Hon. AG had no wish to provide his service to the EC as the latter is an independent commission. (Being a person who has the first-hand information by representing as one Counsel of the team of Lawyers appeared for the Petitioners over the said Election matters, on 11-05-2020, the writer has very slim memory that the Hon. AG uttered any specific reasons for refraining of defending the EC.) In fairness to Hon. AG, it was just an indication made to the Bench that “We do not wish to appear on behalf of the members of the Election Commission” informed by Indika Demuni de Silva, PC., Senior Additional Solicitor General (SASG). Neither the Chief Justice asked nor has the learned SASG given any reasons for what made her to turned EC away. As per the words of Prof. Hoole and the media – that the Attorney General did not want to appear on Commissioners’ behalf due to the fact that the latter is an Independent Commission, a question can be raised that, could the Commissioners, being public servants, whilst executing their official duties, seek to hire the AG by hook or crook, against AG’s own will. Does the cab-van rule rigorously apply to AG?

Answer lies in the following sections of law:

Section 393 of the Code of Criminal Procedure: 

(4) The Attorney-General may nominate State Counsel or employ any Attorney-at- law to conduct any prosecution in any court and determine the fees to be paid to such attorney-at-law. 

Section 463 and 464 of the Civil Procedure Code:

463.If such application is not made by the  Attorney-General on  or before the day fixed  in  the  notice  for  the  defendant  to appear  and  answer  to  the  plaint,  the  case shall  proceed  as  in  an  action  between private  parties,  except  that  the  defendant shall not be liable to arrest, nor his property to  attachment,  otherwise  than in execution of a decree463.  If the Attorney-General undertakes the defence of an action against a Minister, Deputy  Minister,  or  public  officer,  the Attorney-General  shall  apply  to  the  court, and  upon  such  application  the  court  shall substitute the name of the Attorney-General as a party defendant in the action.

464.If such application is not made by the Attorney-General on or before the day fixed in the notice for the defendant to appear and answer to the plaint, the case shall proceed as in an action between private parties, except that the defendant shall not be liable to arrest, nor his property to attachment, otherwise than in execution of a decree.(’464.පෙනී සිට පැමිණිල්ලට උත්තර දීම සඳහා විත්තිකරුට කරන ලද දැනුම් දීමේ නියමිත දිනයේදී හෝ ඊට පෙර නීතිපතිවරයා විසින් ඒ ඉල්ලීම් නොකලහොත්, පෞද්ගලික පාර්ශවකරුවන් අතර වූ නඩුවක් මෙන් ඒ නඩුව පවත්වාගෙන යා යුතු ය. එහෙත් තීන්දු ප‍්‍රකාශයක් ක‍්‍රියාවේ යෙදීම් වශයෙන් විත්තිකරු සිරභාරයට ගනු ලැබීමට හෝ ඔහුගේ දේපල තහනමට අල්ලනු ලැබීමට හෝ ඔහු යටත් නොවන්නේ ය.) 

In the case law of Attorney-General v. Independent Broadcasting Authority [1973] 1 All ER 689, Lord Denning made the following observation with regard to the role of the Attorney-General, (at p. 697). It is settled in our constitutional law that in matters which concern the public at large the Attorney-General is the guardian of the public interest. Although he is a member of the government of the day it is his- duty to represent the public interest with complete objectivity and detachment. He must act independently of any external pressure from whatever quarter it may come. As the guardian of the public interest, the Attorney-General has a special duty in regard to the enforcement of the law.

The quoted sections and cases illustrate that, it is not mandatory that the AG ought to extend his service for each and every action committed by a Minister or a Deputy Minister or a Public Officer. The Hon. Attorney-General has a free hand and a discretionary power based on public interest aspect of each case to decide what cases he prosecutes or what not. Thus, Prof. Hoole’s decry over AG acts in discriminatory manner is legally erred perception.

When look at the reasons upon which the AG was not hired or rather refused being hired, good Professor has given some reasons in his writing to Colombo Telegraph. In some of the said Election Petitions, the name of the President is mentioned as a Respondent (this was permitted after 19th Amendment brought to the Constitution), in some Petitions, the Secretary to the President has been made as a Respondent, in all most all the Petitions, members of the Election Commission and the Attorney-General himself have made parties. Inasmuch as the aspirations of His Excellency and the Election Commission are non-simultaneous as well as the ideas of the duo are poles apart in recent history, Hoole says, he personally does not want to hire the AG. 

On the other hand, the AG himself, in discreet, at the pretext of the said reasons, declined to appear on behalf of the EC (vide: “…The point here however is that the President and the Commission were at odds”  

The decision of dumping AG and retaining a Private Attorney is very gutsy and witty decision made by the learned Professor. This reminds to the writer, a similar matter in which this same legal dilemma was mooted out but ultimately it was held that if AG encounters 2-contrasting positions at a case, he must either give in one Client at the outset or both. In said case, namely, Land Reform Commission vs. Grand Central Limited [1981] 1 SLR 24, it was opined that, “In the course of the argument Counsel for the Defendant was asked what would the Attorney-General do if, when appearing for one of the claimants in a partition case, he discovered in the course of the case or in the course of receiving instructions that the State had a claim to the lands claimed by his client. His answer was that the Attorney-General would immediately cease his appearance for the client, advise the State on the basis of the knowledge so gained by him and then appear for, the State. This contention cannot be accepted. It would be improper for him to jettison his client in that way. Unless he has his client’s express consent, he would be acting in breach of the confidence reposed in him and also contrary to the provisions of section 125 of Evidence Ordinance which expressly forbids any Attorney-at-Law to disclose any knowledge acquired by him in the course of his professional employment….” By looking at the aforesaid case, it is clear that unless the Respondent Public Servant is so certain about the honour and the uprightness of the AG, it is a huge dice that Public Servant has to play casting his or her entire fate on the hands of the Attorney-General who is trying much harder to rescue the pezzonovante (in the instant case, may be the President), over innocents. Thus, Hoole’s suspicion over AG appears for him is quite becoming. In turn, the decision not to provide the service to Prof. Hoole (if it is assumed to be true) is equally wise by the AG. 

But, is that the only reason, viz, the President and the Election Commission are not concurrent with each other, made Hon. AG to avoid the EC? Writer doubts.

The Holy and Independent Election Commission (or the members of that august Commission) has made following list of follies from the onset of the General Election 2020, to date:

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