The AG’s new best friend

THE legal fraternity has highlighted the need for a separate State prosecutor and/or counsel in addition to the Attorney General when defending the State. The creation of such a two-person model, ostensibly through a Constitutional amendment, senior lawyers pointed out this week, would be especially beneficial when defending Sri Lanka in international fora.

This is sound advice, considering, for one thing, the Attorney General already has enough on his plate when dealing with the myriad domestic and international cases he’s embroiled in at any given moment, and more importantly, the conflict of interest that invariably arises when the same civil servant assigned to defend the State is also expected to prosecute it.

One of the arguments put forward in favour of this amendment is that, for the Attorney General to perform his duties efficiently and effectively as legal advisor to the State, he needs to be made independent of the prosecutorial arm of his Department. Another school of thought holds that the Attorney General should continue to function as chief prosecutor, utilising the sweeping powers already vested in him, while a newly-created position of authority and unquestionable repute and competence acts in a capacity of counsel, defending the State whenever the need arises.

We are inclined to agree with the latter, as it makes logistical sense to keep the Attorney General Department’s prosecutorial arm intact, as it already has the wherewithal and mechanisms in place to carry out its duties as chief prosecutor. A respected civil servant should be appointed, through constitutional amendment if necessary, in addition to the AG to play the role of legal advisor to the Government.

Either way, it must be stressed, the proposed two-person model, no matter who ends up playing which role, would be a timely endeavour whose importance in the long term cannot be overstated. The conflict of interest already present in the current system is too obvious to ignore.

As the lawyers themselves pointed out, on the one hand, the AG is expected to be intent on impartially looking into allegations of torture, abductions and other grave violations of human rights made in international fora.  In such a scenario, he cannot also be expected to defend the state against those same allegations. The conflict of interest is, therefore, all too apparent.  The same AG who defended the State internationally would find it difficult to come back home and impartially look into the matter at hand and consider the evidence put forward by various interested parties.

The solution, then, is clear. Create a new position to act as advisor to the State and work in conjunction with the Attorney General as State prosecutor. The State, in this case, being people, a legal entity, and the Government being the caretaker of the State.

In light of the ongoing OHCHR drama and others like it that may, God forbid, arise in the future, this proposed amendment would ensure that the Attorney General can act in the interest of the people by pursuing the prosecution of any wrongdoers internally without being at odds with the defensive position taken in another forum.