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Attorney General’s Office and camouflage; Are opinions colour coded?

The current Minister of Justice has inherited a legal system that appears to have been in a state of slumber for decades. Ad hoc measures probably have been the norm rather than the exception. 

by Raj Gonsalkorale

Chameleons are lizards that are part of the scientific family called Chamaeleonidae. In addition to the ability to change colour, chameleons have many other characteristics that make them special, including parrot -like feet, eyes that can look in two different directions at once and long tongues and tails

In a startling expose published in the Lanka Web, Shenali Waduge has detailed an account of what appears at first hand to be akin to the Chameleon behaviour of the Attorney General’s department in regard to the MCC Compact and the Program Implementation Agreement & Articles of Association of MCA  (The Attorney General’s Department owes an explanation to the GoSL – the Public & the US Government).

Ms Waduge presents the following in her article

One cannot but help thinking that advice provided on some politically sensitive matters could be political colour oriented. This is not an accusation nor a definitive statement but purely an observation based entirely on what has been presented in the article referred to above. 

It is incumbent on the AGs department now to clarify the conflicting opinions presented by them about the same matter at two different times. Firstly, when the Yahapalanya government was in power and riding full steam to have the MCC agreement concluded, and now, when the government currently in power has expressed before the election and after it, that they were opposed to it and will not enter into an agreement. 

All readers will naturally hope that there is a good explanation to the conflicting legal and constitutional opinion expressed by the government entity solely responsible for providing such advice to the government.  

Such a clarification is essential as one cannot continue to be perplexed with what has been presented. If a reasonable and satisfactory clarification is not presented, it will erode the confidence that the public has and should have about the ability of the AGs department to provide unbiased advice to a government in power irrespective of their colour shades and political agendas.

Besides this, as rightly pointed out, the message this type of conflicting opinions send to the international community is damaging from an international relations perspective and importantly, from the perspective of attracting badly needed foreign investments to the country.

Looking at the numerous committees appointed (as mentioned in Ms Waduge’s article) to address loop holes and shortcomings in different areas of the law, it does give the impression that some laws had not been looked at and revised where necessary. One is reminded on the phrase “the law is an ass”. The Cambridge dictionary explains the phrase as follows the legal system or a particular law is wrong or not good enough, and should be changed: If that is against the law, then the law is an ass.

This phrase has also been attributed to an influential English judge Lord Denning. 

In Charles Dickens’s Oliver Twist, in chapter 37, Mr. Bumble had been told that the law assumes that a wife follows the authority of the husband and he had responded with “If the law supposes that, the law is an ass–an idiot.”

So, the need to change or revise laws which are rigid and out of date is not in question, and in fact it is imperative to do that. But, if for some reason they are not changed because of an existing law that says or implies that such rigidity cannot be changed, then the phrase “law is an ass” would apply. 

What is in question is the different standards that have been applied when changing some laws and not others. Ms Waduge’s article amplifies on this, and implies that some laws have been changed virtually overnight at the behest of donors. 

One cannot but wonder with concern why such a seeming dichotomy exists as regards the process to change/revise some laws, while there appears to be a pretence that no such dichotomy exists.

The current Minister of Justice has inherited a legal system that appears to have been in a state of slumber for decades. Ad hoc measures probably have been the norm rather than the exception. It is the law of the land that protects and defends its citizens and it is the duty of the State to ensure all citizens have this protection irrespective of who they are, and their station in life. If the law is inadequate to protect citizens, it is a reflection on the inadequacy of the legal fraternity and the law makers which are the Parliamentarians. 

It does give the impression that the legal fraternity itself has not taken any initiatives to address short comings in the country’s laws and some may have even thrived in the inconsistencies and short comings in various laws. If alleged wrong doers escape from their crimes because of such loop holes and shortcomings in law, and if the legal fraternity has not taken steps to address such shortcomings, they too are indirectly complicit in the crimes committed.

The revelations in Ms Waduge’s article casts a dark shadow over the legal entity that is bound by the Constitution to provide advice to the government of the day. The Role of the Attorney General’s Department has been stated as follows

To provide instructions to the Government and Governmental Institutions on Civil, Criminal, Constitutional and Commercial matters, International legal activities and the matters of the United Nations, Human Rights Commission.

To represent the Government and Governmental Institutions for the cases, instituted in the Supreme Court, Other Court & Labour Tribunals.

To provide necessary legal advice with regard to enactment of new laws and amendments to the existing laws.

The conflicting advice reportedly provided to the government of the day in 2018 and in 2021 on the same matter, which is on the legal and constitutional position vis a vis the MCC Compact and the Program Implementation Agreement & Articles of Association of MCA, does not generate confidence in the minds of the public that the AGs office has acted in the best interests of the Sri Lankan State.

One hopes that an urgent clarification is provided in order to restore confidence in the ability of the Attorney Generals department to live up to the role it has been assigned in the constitution of the country.  

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