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Recent observations by the Supreme Court regarding the importance of the Attorney General independently exercising the enormous array of powers conferred on that Office by statute are, by a cynic’s perspective, nothing very new.

Elephant smuggling and the law

Reportedly, these cautions had been issued during the recent granting of leave to proceed by a Bench in an extraordinarily poignant case brought by an environmental group  in respect of a Cabinet paper on ‘a policy in respect of tamed elephants where judicial proceedings and investigations are being conducted and transferring the ownership.’ This paper had been presented to the Cabinet by Prime Minister Mahinda Rajapaksa and Minister of Wildlife and Forest Conservation C B Ratnayake.

Procedural objections put forward by the Attorney General against the challenge were summarily dismissed by the Court. The petitioner had alleged that the Prime Minister, Minister of Wildlife and the Cabinet of Ministers were interfering with the statutory powers of the Attorney General by directing him to withdraw all cases against those illegally keeping tamed elephants and hand the animals back to the very persons who bought them from the traffickers. This was in clear violation of the law in force.

That allegation has, ‘far reaching ramifications if true,’ the Court observed. The Attorney General was reminded that, ‘any type of dictation from whatever quarter will compromise the independence of the Attorney-General unless such dictation is permitted by law; any compromise of the independence of the Attorney-General will have a negative impact on the rule of law.’ These remarks have been made time and time again by the apex court but with little impact, it seems, on the functioning of the state law office.

Patently wrong policy decision

This latest interjection has come in the context of these petitions challenging a patently wrong policy decision in regard to the treatment and custody of tamed elephants. This is perhaps the most telling indication as to how far we have degenerated as a nation. For, of all the multiple things that have gone wrong with this country during the past several decades, our inhumane treatment of these majestic animals must surely rank as despicable at the highest levels. This was a struggle that elephant conservationists had been engaged in for years but vainly so.

Registration of elephants without adequate checks as to how they were captured and without what is commonly referred to as ‘proof of pedigree’ had been a major focus of this struggle. Public outrage thereto did not have any impact on the barbaric smuggling of elephant calves.  Those who profited off the illegal sale of baby elephants included monks and politicians. In that context, the judicial reminders to the Attorney General have a distinctly ironic flavour in a context where the plight of Sri Lankan elephants mirror the plight of the land.

Then again, it must be repeated that these are not new sentiments. What must follow are not only admirable sentiments but also judicial willingness to scrutinize the evidence on which a decision of the Attorney General is based. Thus the Courts must extend this willingness to acknowledge that the discretion of the Attorney General is not unfettered. For example, why should mandamus not be available to order the Attorney General to prosecute or to give his consent for others to prosecute, under statutes affording him exclusive control over the initiation of proceedings?

Looking at the discretion of the Attorney General

Thus, citizens may suffer actual harm following inflammatory and regular racial invective against them by an organisation, the leaders of whom the Attorney General refuses to prosecute. Rightly they might assert that his refusal was based on political or general considerations and is mala fide.  They may therefore seek mandamus to compel the determination of their application. Those are surely pleas that must be looked at seriously? The Court must interpret the meaning of mala fide to enable a check on prosecutorial decisions if they are tainted by improper motives, arbitrariness, discrimination and where there is a material or grave distortion of reason.

Essentially there must be no difference in imposing standards of accountability on the Attorney General and other public officials. Both must exercise discretion with fairness, honesty, reasonableness and discrimination.  They must act, taking into account relevant considerations only. In the absence of that criteria, the Attorney General should be taken to task by the courts. In filing indictment for example, the decision of the Attorney General must be guided by statutory criteria and should not be arbitrary. Moreover, there must be some distinct public interest and benefit.

For example the statement in issue must be assessed is likely to disrupt racial or religious harmony or to prejudice Sri Lanka’s international relations or to erode public confidence in the maintenance of law and order or in the administration of justice. Generally our courts have been reluctant to intervene even when finding a lack of proper investigation and certain lapses on the part of the officers of the Crown. Typically these are seen as a lapse on the part of those responsible for the investigation and not the Attorney General.

More stringent standards of review are needed

The “exceptional circumstances” test has been applied in actually intervening to set aside the decision of the Attorney General.  This is seen in the extreme examples generally drawn by the Court as exemplifying instances where interference with the discretion of the Attorney General in granting sanction could be justified.  Judicial reasoning has proceeded on the basis that the faulty investigations on the part of the officers of the State could not be visited on the Attorney General.

However, the contra argument to this would be that in cases involving violations of fundamental rights, the liability would be that of the State regardless of whether blame could be laid at the door of the investigating officers or the prosecuting officers. Stringent standards must be observed. What we see now is the political use of the discretion of the Attorney General which is harmful not only to that Office but to the justice process in general.

The responsibility of the judicial branch in that respect is extremely high. It must not stop at excellent statements from the Bench which do not, however, have impact beyond the day in question.