The Attorney General in the hot seat

“God give us men! A time like this demands

Strong minds, great hearts, true faith, and ready hands;

Men whom the lust of office does not kill;

Men whom the spoils of office cannot buy;

Men who possess opinions and a will;

Men who have honor--men who will not lie.

Men who can stand before a demagogue

And damn his treacherous flatteries without winking;

Tall men, sun-crowned, who live above the fog

In public duty and in private thinking;

For while the rabble, with their thumb-worn creeds,

Their large professions and their little deeds,

Mingle in selfish strife, lo! Freedom weeps,

Wrong rules the land, and waiting Justice sleeps”

Josiah Gilbert Holland (1819-1881) American Essayist and Poet

As the saying goes, ‘in politics, perception is reality’.

Not long ago, the general perception was that the Attorney General’s office was pretty much an extension of the Government of the day. The Government says to charge or discharge this or that citizen, the Attorney General complies promptly. Let time decide the small matter of evidence; after all, in the Sri Lankan reality the case will be heard only many years later. By then, it will be a different stage, with different actors enacting a different drama. God knows how Sri Lankans love cheap drama!

 Governments usually do not have an interest in run-of- the mill criminal matters, although at a village level that happens in this country sometimes; a local politician intervening on behalf of a rapist or a murderer who is his supporter is not uncommon. Such interventions rarely come to the public domain, an injustice happening in a remote setting; the feeble victims of improper political interference cannot fight back, they are too vulnerable.

However, we are concerned here with cases which have political connotations or are so perceived. Sometimes these cases arise out of public demand for action, in a matter like the Easter Sunday outrage. If a deeper conspiracy can be found, if there were men pulling strings in the shadows to be exposed, there is bound to be a political dividend. Then, there are situations where the process can be manipulated to harm political opponents, such as the Sarth Fonseka persecution, a travesty in the general opinion. He was the main opposition candidate against Mahinda Rajapaksa at the Presidential elections in 2010. The same Sri Lankan State (Democratic and Socialist Republic!) that dealt with Sarath Fonseka harshly, later pardoned him and even made him Field marshal. The Government had by then changed, and with that, the concept of justice!

Sri Lanka has never been an exemplar for high standards in public life. The brown “sahibs” who took over from the British were for the most part a mimicry. As the post-independence years have shown, in both temperament and skill, they were unsuited for the public roles they assumed. Having neither the character attributes nor the supporting culture which enabled the British to hold together a world-wide empire, the local bigwigs got into those shoes with amazing hubris. From then on it has been a tragicomedy, the country has lurched from crisis to crisis. 

Even in the early years of the 20th Century when the franchise was introduced to the country, our election campaigns were marred by abuse and thuggery; the objective was to win, by any means. “Elections”, a new method of finding leaders (unlike the hereditary leaders we were used to), could be manipulated too! A few families dominated the parliament; very many of these so-called leaders came from two schools in Colombo. The selfsame class also dominated the commercial establishments, public service and even the professions. 

Everything in the country was done on a who’s who basis, old boy networks and of course by oiling the palm. The culture connived, every individual was assessed by his family connections, school or place of origin. Businesses were built on patronage and favouritism. Whenever manufacturing was attempted by local businesses, they could not compete globally, their quality was doubtful. To survive, they advocated import bans on similar products, and, thrived on the monopoly status they enjoyed. The consumer got a bad deal, a poor product, at a higher price!  

This crude monopoly of power was justified by references to British schools like Eton and Harrow; arrant nonsense of a people of little significance in the global scale, equating themselves with Anglo-Saxon institutions of a country which dominated the world for nearly two centuries.  Such easy comparisons ignore many things, the initiatives that engendered these institutions, and other ideas in the originating country that acted as a check as well as qualified these concepts and institutions. The organic culture which developed Eton and Harrow, the outlook and capabilities that actuated them, were totally absent in the imitating country.

The preceding seventy years have shown that our leaders were not institution builders, they used them to their advantage, only to leave the institutions drained of credibility. 

It will not be wrong to say that in our diminishing public sector, the Attorney General’s Department bucked the downward trend for many years, earning a reputation for a sturdy independence and reliable competence. The concept of this office has inherent safety valves; its officers are reasonably sheathed from undue interference; they turn a deaf ear to mass hysteria and in its internal processes an officer’s independent professionalism carries value. The career path of an officer of the Department eventually leads to judicial office or a practice in the private bar, a good reputation and well-honed skills help in either path.

Nevertheless, we cannot ignore the fact that both concepts, an independent judiciary as well as a quasi-judicial Attorney General’s office, are borrowed ideas. They did not grow organically from whatever systems we had in the past. One might even say that these adopted concepts were planted in a not so hospitable soil. In a patronage-based culture, the ultimate patron cannot be seen to be subject to checks and balances without losing face! While every Government pays lip service to the idea of independent judicial institutions, every Government has attempted to bend these institutions to their will when it suits them. They differ only in the degree of abuse.

History will judge the Rajapaksa years as one of the most abusive periods; institutional rules, public ethics and general standards were all bent to their will. The tragedy was that the bending was not always coerced. Men who should have known better, men holding high office collaborated in the diminishing of their own office. Some professed that they were doing it due to their personal closeness to Rajapaksa, an attitude with a particular meaning in the Sri Lankan culture. But this is not a selfless friendship with an ordinary mortal, the subject of that ready loyalty is a huge benefactor, a man who did not hesitate to bestow plum jobs on those he favoured.

 Others claimed patriotism as their motivation, a catchword in that era. Not that they fought in the trenches, they were desk-bound paper tigers. From one top job to another they maneuvered: Government lawyer, judge, Bank boss to Government’s mouthpiece at international forums. Even family members of the collaborators were rewarded. One must marvel at the complex compound of talents these persons carry, the one constant being the fickleness of their moral compass. Examined objectively, nothing improved for the country in these years; if at all, Sri Lanka’s standing internationally only weakened, there was a perception that politicisation was creeping into the judiciary and in the eyes of the public the image of the Attorney General’s Department hit the nadir. Samuel Johnson’s famous observation that “patriotism is the last refuge of a scoundrel”, was never truer.

In that era, there was no question that any person the Government wished to be prosecuted , would be; if the Government wanted a matter soft-peddled, that was it; and, if the Government wanted a case kept in limbo, it would.

The resulting loss of public confidence in the system is bound to be a burdensome legacy for any succeeding Attorney General. Whatever he does, will be looked at through the past record of his office.

However, there is a shift in the perception today, the Attorney General is not a rubber stamp, at least not for some vociferous elements claiming to be supporters of the Government.  They are apparently unhappy that the Attorney General does not satisfy them promptly. Any matter concerning a citizen demands responsible deliberation. For the clamorous agitators, facts do not matter, nor do they take the responsibility. 

Perhaps the systems are changing….