Evolution of the Office of the Attorney General in Sri Lanka

The Attorney General is the Chief Legal Officer of the State. In that capacity he advises the State, Government Departments, Statutory Boards and Public Corporations in respect of all legal matters. He conducts prosecutions in criminal cases and appears on behalf of the Government, Government Departments, Statutory Boards and Public Corporations in diverse judicial fora.

The Office of ‘Attorney General’ was formally established in 1884 under the British Colonial Rule. However, the Office of the Attorney General could be traced back to the Office of the Advocate Fiscal which was in existence towards the latter stages of the Dutch rule in the Island of Ceylon and which Office continued even during the early years of the British occupation until the year 1834 when the designation of this Office was changed to that of ‘King’s Advocate’, and thereafter during the reign of the Queen of England to ‘Queen’s Advocate’.

By Ordinance No. 1 of 1883, the designations of officers known as the ‘Queen’s Advocate’ and ‘Deputy Queen’s Advocate’ were changed to ‘Attorney General’ and ‘Solicitor General’, respectively. The deputies to the ‘Queen’s Advocate’ were named ‘Crown Counsel’. All rights, precedents, powers, privileges, which at the passing of the Ordinance belonged to the ‘Queen’s Advocate’ and ‘Deputy Queen’s Advocate’ were vested in the ‘Attorney General’ and the ‘Solicitor General’, respectively. The change took effect from 1st January 1884. While introducing the Ordinance in the Legislative Council, the ‘Queen’s Advocate’ said that the Bill proposed that the ‘Attorney General’ and the ‘Solicitor General’, besides having the powers exercised in England by their counterparts, should have the same rights and privileges which the Law Officers of the Crown have hitherto possessed in the Colony.

The Ceylon Civil List stands testament to the fact that Crown Proctors were outsourced by the Attorney General’s Department since 1920, to handle the procedural aspect of civil litigation. These appointments were then extended in 1944 to Crown Conveyancers, who were appointed specifically to engage and advise in matters pertaining to conveyancing within the purview of the Attorney General. Gradually, in 1952 and 1955 the first internal appointments were made to the posts of Crown Proctor and Crown Conveyancer respectively, whilst the outsourcing continued for the out station Courts, island wide.

Under the Donoughmore Constitution, the provision of legal advice to the Governor became the responsibility of the Legal Secretary and the Attorney General’s Department. The institution of criminal prosecutions and civil proceedings on behalf of the Crown was the duty of the Attorney General’s Department. The Soulbury Commissioners recommended that the functions of the Legal Secretary certifying Bills prior to submission to the Governor for assent, should be transferred to the Attorney General. The Commissioners recommended the appointment of a Minister of Justice to deal with the subjects then allocated to the Legal Secretary. They also recommended that under the new Constitution, for some time at least, the Attorney General and the Solicitor General should not lose their status as public servants and become Ministers, and that the provision of legal advice to the Governor General should in future be a duty of the Attorney General.

The Ceylon (Constitution) Order-in-Council of 1946 gave effect to these recommendations except that in regard to Bills it provided that the Speaker shall consult the Attorney General or the Solicitor General before giving his certificate to any Bill. It was only after such certificate that the Bill could be presented to the Governor General for assent.

Sri Lanka attained independence from the British Empire on the 4th of February 1948. She became a Republic under the 1972 Constitution. The Governor General was replaced by a President who was nominated by the Prime Minister and who was required to act on the advice of the Prime Minister and other Ministers. Until 1972, the Attorney General was appointed by the Governor General and thereafter by the President. The Constitution of 1978 provided for an Executive President to be elected by the People. Under that Constitution also the President was empowered to appoint the Attorney General.

With the enactment of the Administration of Justice Law, No. 44 of 1973, certain powers of the Attorney General associated with the criminal justice system, were conferred on the Director of Public Prosecutions, which was an office created by that law. In practice, the Director of Public Prosecution functioned from within the Attorney General’s Department and was required to adhere to the advice of the Attorney General. That position was abolished in 1978, with the repeal of the Administration of Justice Law. The 2nd Republican Constitution empowered the Executive President to appoint the Attorney General.

It is observed that none of the Constitutions adopted since 1946 altered the non-political status of the Attorney General and the Solicitor General. The Attorney General continued to be the Chief Law Officer of the State. His independence and the status remained unaffected. However, his functions were increased under the 1972 Constitution and thereafter in the Constitution of 1978.

In terms of the present Constitution, the Attorney General is appointed in terms of  Article 41A of the Constitution, on the recommendation of the Parliamentary Council and his tenure is guaranteed in terms of the Removal of Officers (Procedure) Act No. 5 of 2002.