Attorney General’s duties and functions vis a vis legislation
Under Article 77 of the Constitution, it is the duty of the Attorney General to examine Bills and to advise the President if any of the clauses therein are inconsistent with the provision of the Constitution and have to be enacted by a special majority as prescribed in the Constitution. The Attorney General also examines to see whether the provisions of a Draft Bill fall within the Provincial List or the Concurrent List set out in the Thirteenth Amendment to the Constitution, and advices accordingly whether the special legislative procedure set out in Article 154G needs to be followed before placing the Bill in the Order paper of Parliament. As a matter of practice, the Legal Draftsman forwards to the Attorney General a copy of every Bill for the examination of the constitutional consistency of the Bills. The Ministry concerned, take steps to have the Bill published in the Gazette only after the Attorney General certifies under Article 77(1) that the provisions of the Draft Bill are not inconsistent with the Constitution. This practice enables to ensure in the early stages of drafting legislation, that proposed laws do not contravene provision contained in the Constitution.
An officer acting on behalf of the Attorney General attends Parliament when Bills are debated and become law. The officer so attending advises the Speaker on the constitutionality of any proposed amendments.
Attorney General’s Right to be heard by the Supreme Court
Article 134 of the Constitution confers on the Attorney General the right to be heard by the Supreme Court. Accordingly, the Attorney General shall be notified in all proceedings in the Supreme Court in the exercise of its following jurisdiction, namely;
(i) When the Supreme Court exercises its jurisdiction in examining the Constitutionality of Bills under Articles 120, 121 and 122 of the Constitution;
(ii) Where any question relating to the interpretation of the Constitution is under consideration by the Supreme Court under Article 125 of the Constitution;
(iii) When the Supreme Court hears any complaint of breach of Fundamental Rights guaranteed by the Constitution under Article 126 of the Constitution;
(iv) When the Supreme Court exercises its consultative jurisdiction upon reference by the President of a question of law or fact of public importance under Article 129 (1) of the Constitution; and
(v) When the Supreme Court examines its jurisdiction in respect of breaches of Parliamentary privileges under Article 131 of the Constitution.
Attorney General’s Role in Fundamental Rights Applications
The Attorney General as the Chief Law Officer of the State advises public officers and others state entities who are cited as respondents, and undertake their defence in cases after a careful consideration of the observations submitted with regard to such Fundamental Rights applications by the said respondents to such cases. In this context, the Attorney General and his officers have been mindful of the rights of a person enshrined under the Constitution vis a vis the conduct of public officials.
In instances where the Attorney General is of the view that a case warrants relief to the aggrieved party, the Attorney General advises the relevant public officials or the state agency towards resolving such grievance that may have arisen. In this context, in cases where there are allegations of torture against public officers cited as respondents, the Attorney General may decline to represent such officers in those proceedings. Such a decision of the Attorney General is premised upon the reasoning that a conflict of interest may arise in the event a finding is made by the Supreme Court against such officers alleged to have committed to torture and the Attorney General is required to prefer an indictment in respect of such persons under the other penal laws such as the Torture Convention Act.
While the Attorney General performs several functions entrusted by law towards the promotion and protection of fundamental rights enshrined under the Constitution. The functions of the Attorney General and his Officers with regard to the promotion and protection of fundamental rights may be aptly summed up in the words of Chief Justice Neville Samarakoon in the case Land Reform Commission v Attorney General: ‘As Attorney General, he has a duty to court, to the State, and to the subject to be wholly detached, wholly independent and to act impartially with the sole object of establishing the truth…..”.
Attorney General as amicus curiae
The Attorney General appears for the State, state officers and state entities before the Superior Courts at the hearing of appeals and applications for prerogative Writs. Prerogative Writs involve public rights and the Attorney General has a special duty to assist the Court in such cases to reach the correct decision after balancing the rights of the State and public interest. The Attorney General is often invited to assist as amicus curiae in matters of Constitutional and public importance.
Further, under Article 105 (3) of the Constitution, the Supreme Court and the Court of Appeal of Sri Lanka have the power to punish persons for contempt of court including contempt of lower courts of original jurisdiction. In exercising their jurisdiction, both Courts seek the assistance of the Attorney General to draft the Rule that is to be issued on the person accused of committing the offence of contempt. Further, an officer of the Attorney General’s Department appears as amicus curiae when the matter is taken up for hearing. Similarly, in relation to disciplinary proceedings against Attorneys-at-Law, the Registrar of the Supreme Court forwards the relevant material to the Attorney General for the purpose of drafting the Rule. Further, an Officer of the Attorney General’s Department appears in Court and assists the Court when the Rule is taken up for hearing.
Accordingly, it is seen that the office of the Attorney General is at the intersection of the Executive, Legislature, and Judicial arm of the State as well as at the intersection of the State and the citizens. This unique position has been preserved and continued under successive Constitutions.