Conflict of interest noted when AG both defends and advises State simultaneously
Two-person model proposed where AG acts as prosecutor and newly-created position of advisor
Important to have an AG independent of prosecutorial: J.C. Weliamuna
By Himal Kotelawala
A two-person model involving the Attorney General and a newly-created position of an independent prosecutor and/or counsel should be looked at when defending the State in international fora, a panel of senior lawyers said yesterday.
Speaking at a public discussion titled ‘The Role of the Attorney General (AG) in Defending the State’ organised by the Law and Society Trust, Human Rights and Constitutional Lawyer J. C. Weliamuna said an AG independent of the prosecutorial should advise the State , possibly through a constitutional amendment.
“I think it’s a major requirement to win the trust of the people. If we can’t win the trust of the people, we’ll never win the trust of the international community,” he said.
The international community is of secondary importance, he added.
Commenting on the Office of the High Commissioner for Human Rights (OHCHR) report on Sri Lanka, Weliamuna, who is also a prominent activist, said the conclusions reached in the report did not surprise him.
“It never surprised people like us who had been critically looking at the judicial arm of the State. We knew that there was a problem. We need to find answers. One recommendation that we can straightaway make is to take the prosecutorial arm out of the AG. An AG independent of prosecutorial should advise the State,” he reiterated.
Weliamuna further said that a conflict of interest could arise when the AG was called to prosecute the very State that he was assigned to defend.
“The AG should defend the State, no doubt. But there must be a special independent prosecutor to prosecute grave human rights violators. There, maybe even the State can be a party, subject to certain prosecutions. Maybe the AG can confine its statutory powers to that. But the AG being authorised to prosecute and to defend is a major conflict of interest,” he said.
An independent prosecutor is important not only for war crimes or accountability investigations, said Weliamuna, adding that it must hold a permanent position in Sri Lanka’s judicial system.
“Otherwise we’ll never win the confidence required. We also need to bring in integrity into the Attorney General’s Department, the Judiciary and the lawyers,” he said.
Currently there was no sufficient commitment to address this problem, he added.
Elaborating on the need for a shakeup in the system, Weliamuna said there was no need to panic about the appointment of a special prosecutor.
“The world has seen special prosecutors. We have seen it here in Sri Lanka, whether hybrid or otherwise. I don’t understand why people are so jittery about it. Legal systems are full of hybrid systems. Our Common Law is a hybrid system,” he said.
Meanwhile, co-panellist and Attorney-at-Law Viran Corea, while expressing similar sentiments regarding the role of a prosecutor, deferred with Weliamuna on the grounds that the AG should act as prosecutor and have someone else take the responsibility of advising the State.
“The prosecutor must be a separate entity. I would defer with Weliamuna in that I would say the AG, since he has the wherewithal and the mechanisms and systems, should continue to be chief prosecutor. I think the role of advising the Government should in certain respects could be given to somebody else,” he said.
However, he agreed that the conflict of interest was too strong to ignore.
“That is a very difficult conflict of interest scenario, for the reason that on the one hand, the AG is expected to be intent on impartially looking into allegations of wrongdoings in the nature of torture, abductions and so on. If the AG is to be impartial, he cannot also be party to defending allegations against the state in respect of the same matters. We get a situation in which the AG would then go to these international fora and be called upon to defend the state and say ‘no, this never happened,’” said Corea.
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 some segments of people who would’ve gone there and said ‘no, those things definitely did happen.’
“I think there is a conflict of interest, and at some point, even the best of human beings, in this kind of tension, is likely to stumble,” said Corea.
When asked by Daily FT what sort of person would be ideally positioned to be made prosecutor in such an event, Corea said that, as far representing the Government is concerned, it would have to be someone very capable and competent and not second to the AG in terms of ability.
“It’s a very important role. The Government needs competent, capable defence in international fora. No two words about that,” he said.
But the person who is selected should not ideally be the AG, he explained, because as the latter’s role would be to prosecute, while the selected individual would attend the said international fora and defend the Government and its record.
“At the same time, the AG would not be encumbered by what this person went and said internationally, because, he or she not having been involved in this defence and been embroiled in that scenario can independently and objectively consider all evidence. When an allegation is made to the effect that something that the person defending the State in international fora said didn’t happen, but if there is an indication to suggest that it had, to the AG, he can ask the police – there are powers given to the AG to direct the police to conduct investigations – he can say ‘take these steps; there is ground to prosecution, etc.,’” said Corea.
This way, explained Corea, the AG would be able to ensure that he acts in the interest of the people by pursuing the prosecution of wrongdoers internally without being at cross purposes with the position taken in another forum.
“It’s difficult to run with the hare and hunt with the hound. Sometimes you have to do that. That is the nature of politics. That’s how the world works. In that context, a two person model works better,” he said.