An independent public prosecutor

The Attorney General is under fire by sections of society for a dereliction of duty. He is accused of letting prosecutions off the hook.  Perhaps the spotlight on him would have been less harsh had these prosecutions not involved politically sensitive, and what have now come to be known, emblematic cases, which have been languishing  unresolved for many years. Families of victims have had their emotions yoyo from despair to hope with successive governments promising them answers that have amounted to nothing.

The Removal of Officers (Procedure) Act, 2002, provides a regulatory framework to remove top officials like the Attorney General and Inspector General of Police, from their constitutional inheritance. The framework , dominated by parliamentary and legal oversight, provides these officers with safeguards to do their work in good faith and not risk arbitrary removal at the whim of the Executive.  

Under the Act an Attorney General or Inspector General of Police can be removed on one or more grounds where the officer has been adjudged an insolvent by a court, is unfit to continue in office for reasons of ill health or physical or mental infirmity, is convicted of moral turpitude, treason or bribery or is found guilty of misconduct or corruption, or is guilty of a gross abuse of power of his office, neglect of duty or partiality. 

In keeping with the provisions of the Act, it is the President who removes the Attorney General. The removal procedure kicks off after the ‘presentation of an address of Parliament supported by a majority of the total number of Members of Parliament (including those not present) for the appointment of a Committee of Inquiry.’  In the case of the Attorney General, the Committee has to comprise the Chief Justice who will act as its Chairman and two former Attorney Generals.  Alternatively, the Act provides for the appointment of persons who have gained eminence in the field of law, appointed by the Speaker with the concurrence of the Prime Minister and the Leader of the Opposition. 

The Committee has to inquire into and investigate the alleged grounds on which the removal of the holder of the Office is sought and to make findings in respect of these grounds based on written or oral evidence including witness evidence , and communicate them to the Speaker.  

Where there is a finding of guilt, the Speaker has to  place such a finding in the form of a resolution in the Order Paper of Parliament for the removal of the holder of the Office.  When a majority of Members of Parliament vote in favour of the resolution, the holder will be removed from Office by the President. 

The most recent instance where the provisions of the Act were invoked was for the removal of former Inspector General of Police Deshabandu Tennakoon.  He was also the first sitting Inspector General of Police to be removed in Sri Lanka’s history.  There is no known instance in the country’s political history where an Attorney General has been removed. 

The current Government has pledged to set up an office of Public Prosecutor and provincial sub officer to carry out prosecutorial functions for the Government, currently being done by the Attorney General. According to the website of the Cabinet of Ministers, this is expected to improve the independence and transparency of the criminal justice system and expedite the criminal justice process to gain the confidence of the people. The Justice Ministry has appointed a three member technical committee of experts to examine and report on introducing new legislation for this office and if necessary, to make recommendations to amend existing laws.  The Committee is headed by Justice Yasantha Kodagoda, President’s Counsel and Judge of the Supreme Court.    

Establishing an Office of Public Prosecutor will help the Government to protect itself from accusations of political witch hunts and vendettas, and the Attorney General from finger pointing about acts of bad faith, partisanship and bias. More importantly, it will uphold the integrity of the office of Attorney General which citizens and the tax payer look to, to act with impartiality and transparency to uphold the rule of law.