Evolution of the office of Attorney General

The office of the Chief Legal Advisor of the Government in Sri Lanka is designated the Attorney General.  In the year 1884 this office was established by law consequent to a decision of the Supreme Court. 

Prior to foreign conquests, Sri Lanka, had an elaborate judicial system where the King was recognized as the fountain of justice.  In this ancient system judicial powers were exercised by a hierarchy of officials. 

The Attorney General is said to be the lineal successor of the office of "Advocate Fiscal", the existence of which could be traced back to the early stages of Dutch rule in the Island.

In 1834, the British renamed the office of the "Advocate Fiscal" as "King's Advocate". Thereafter during the reign of Queen Victoria the office was called and known as Queen's Advocate.  By Ordinance No. 1 of 1883, the designations known as King's Advocate and Deputy King's Advocate were amended to Attorney General and Solicitor General respectively.  This change took effect form 1st January 1884.

By the earliest constitutional reforms effected in 1833 the Attorney General was made a member of the Executive Council. In 1877 the Attorney General in addition to his membership in the Executive Council, was also made a member of the Legislative Council.

In 1931 under the Donoughmore Constitution an office of the State, called the Legal Secretary, was created thus replacing the Attorney General in the Legislature. The office of the Attorney General was then regarded constitutionally entrenched to be that of a public servant. The Legal Secretary as well as the Attorney General now advised the Governor.  The Attorney General together with the Solicitor General and nine Crown Counsels handled criminal prosecutions and all civil matters pertaining to the Crown.

In 1946 the Soulbury Constitution created a Minister of Justice, but the Attorney General and Solicitor General remained public servants and the duty of providing legal advice to the Governor General was placed on the Attorney General alone.

On 4th February, 1948 Sri Lanka attained independence.  In 1972 she became a Republic and the Governor General on the advice of the Prime Minister appointed the Attorney General.  In 1978 a new Constitution was enacted whereby provision was made for an Executive President to replace the Governor General. Consequently the President now appoints the Attorney General.  Throughout these constitutional reforms since 1946, the non-political status and independence of the Attorney General remained un-altered.

Function of the Attorney General

The office of the Attorney General, today is kept apart from the Legislature as a separate department of the State functioning under the Attorney General himself.  Available records show that as far back as 1884 the Attorney General was assisted in the discharge of his duties and functions by the Solicitor General and Crown Counsel.  In due course the Crown Conveyancer (later designated "Crown Proctor" and presently known as the "State Attorney") was also appointed to the Attorney General's Department to attend to Conveyancing work and to  instruct in the conduct of civil litigation of the Government.

The Attorney General is the Legal Advisor to the Government and is the upper guardian of the Law. The Attorney General in the discharge of his duties and functions is called upon to act in a quasi-judicial capacity and is bound to act objectively and impartially between the State and the subject.  The office of the Attorney General in Sri Lanka, is multi-faceted. His functions are summarized as follows;

  • As Legal Advisor to the Government -  Form an opinion after considering the legal principles applicable and advise the Government to act within the law in implementing its policies.
     
  • Criminal prosecutions -  His functions are quasi-judicial, only  interest being  to ensure that the verdict is in accordance with the law.  He advises Government Departments, particularly the Police Department.  Accused persons who are charged with serious offences are indicted in the name of the Attorney General.  Some of his powers under the Code of Criminal Procedure Act No. 15 of 1979  are enumerated herein viz.:  The power to determine whether a trial in the High Court shall be by jury, Trial at Bar or otherwise,  to grant sanction to institute certain prosecutions,  to tender pardon to accomplices,  to call for the original record even while the prosecution is pending,  to quash a commitment made by a Magistrate and issue instructions to a Magistrate,  to direct a Magistrate to commit an accused who has been discharged, to decide the Magistrate's Court having jurisdiction to try a case in case of doubt, to re-open a Magisterial inquiry and conduct the same in accordance with the instructions given by him and  in his discretion to enter a plea of "Nolle Prosequai".
     
  • Civil matters Advises the Government and Government Departments and  appears for the Government in Court.  All actions by or against the State are instituted in the name of the Attorney General.  Section 461 of the Civil Procedure Code makes it compulsory for one month's notice of action to be given to the Attorney General before any action is filed against him, any Minister, Secretary or a Public Officer.  He promotes the settlement of disputes between Government Departments and/or Public Corporations on the one hand and the public on the other in appropriate case. He entertains petitions from the public and endeavors to effect administrative relief in appropriate cases.  He advises all government department and other State Institutions in respect of the law.
     
  • Other functions The Attorney General is the head of the Bar.  The role of the Attorney General is unique, as he interacts between the different organs of Government, the Legislature, the Executive and Judiciary.  Thus, the Attorney General appears in contempt of court proceedings, in disciplinary proceedings against Attorneys-at-Law, he assists the court as amicus curiae to reach a decision consistent with the relevant principles of law and the rights of litigants as a case may be.  He has a duty to ensure that a correct decision is given after balancing the rights of the State and the public in respect of applications for the issue of prerogative writs. He examines draft legislation for constitutionality. The Attorney General's also assist in matters pertaining to the negotiation of  international treaties, bilateral treaties and trade agreements. He appears in the Supreme Court in fundamental rights cases in order to safeguard the interests of the State as well as the public.
     
  • The functions of the Attorney General or onerous in nature in view of the responsibilities cast upon him in the Constitution as well as other Statues. He is accorded a special place of honour both at ceremonial sittings of the Supreme Court and meetings of the Bar Council. By tradition too the office of the Attorney General carries with it certain privileges, which are not accorded to any other member of the legal profession.   

 

 All Copy rights @ Wishya Online (Pvt) Ltd.