SEETHA v. SHARVANANDA AND OTHERS

006-SLLR-SLLR-1989-V-1-SEETHA-v.-SHARVANANDA-AND-OTHERS.pdf


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Sri Lanka Law Reports
(1989/ 1 Sri L. R.
SEETHA
V.
SHARVANANDA AND OTHERS
COURT OF APPEALS.N. SILVA J..
' CA.'43/83 WITH H.C.A. 310/87JUNE 7.. 1988..
Habeas Corpus application — Right of Attorney-General to appear.
Under our law the Attorney-General is empowered to defend public officers incivil actions and to. secure the acquittal of public officers in criminalprosecutions. The possibility that the proceedings may result in a public officerbeing- prosecuted and punished cannot- debar the Attorney-General fromappearing for him.
Cases referred to :
Attorney-Generaf m. Independent Broadcasting Authority [1973] 1 All ER689
Gouriet v. Union of Post Office Workers and others (1 977] 3 All ER 70
Land Reform Commission v. Grand Central Ltd. [1981] 2 Sri LR 147 (CA).SC Minutes of 1 6.9.1 981 — Nos. 36/81 and 37/81 (SC)
Vettivelu v. Wijeratne 60 NLR 44
Application for an order regarding right of Attorney-General to appear for apublic officer who is a respondent in a Habeas Corpus application.
H.L. de Silva P.C.. with Suriya Wickramasinghe. Sanath Jayatillake. Lalitha■ Seharathne and Tilak Balasuriya for the petitioner.
R. Arasakularatne S.S.C. for respondents.
Cur. adv. vult.
July 22, 1988 .. ..
S.N. SILVA. J.
The Petitioner has filed this application for a ruling and. a. direction, to be given by this Court to the' Chief Magistrate.Colombo, that State Counsel on behalf of the Attorney Generalshall not appear and- defend the 1st Respondent, A.E.Sharvananda (Officer-in-charge, Police Station. Kotahena), at the
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inquiry being held by the Chief Magistrate in-terms of the provisoto Article 141 of the Constitution. The application stems from anorder made on 10-1 1-1987 by the. Chief Magistrate overrulingan objection taken by the Counsel for the Petitioner, to a SeniorState Counsel appearing for the 1st Respondent at the said-inquiry.
On 26-8-1983. the Petitioner filed an application No. H.C.A.•43/83 for-a writ of Habeas Corpus in respect of her husband,named as the 2nd Respondent (the corpus). The 1st and 3rdRespondents, the OJ.C. and I.G.P. were parties to thisapplication. The affidavit of the Petitioner filed in that applicationstates inter alia that on 27-7-1983 at about 10 p.m. the 1stRespondent came with two other Police Officers, broke-open thedoor of the house and dragged the corpus away to a-jeep thatwas parked outside the house. The application was supported on3-1-8-1983 and the-Court issued notice on the 1st and .2nd.Respondents and directed that the corpus be produced in Court..-On 6-9-1 983. State Attorney filed the proxy'of the 1st and 3rd’Respondents together with their affidavits. The 1 st Respondent inhis affidavit denied the allegations contained in the Petitioner’saffidavit and stated that- he was at another place at the time inquestion. When the- case .was mentioned before this Court on7-9-1983 a Senior Attorney appeared for-the Petitioner and aSenior State Counsel appeared for the 1 st and 3rd Respondents.In view of the contents of the affidavits.filed by the Respondents.
• Counsel for the Pettitioner moved that the matter be’referred foran inquiry and report to. the Chief Magistrate Colombo. TheCourt, on this application. ’ made a direction to the ChiefMagistrate Colombo in terms of the proviso to Article 141 of theConstitution. It is to be noted that counsel for the,Petitioner tookno objection to the 1st and 3rd Respondents being representedby Senior State Counsel although, the allegation of the Petitionerand denial of the 1st Respondent were'done in the form ofaffidavits by that stage..
The inquiry commenced before the Chief Magistrate on 4-10-1983. The Petitioner was represented by Counsel and the 1stand 3rd Respondents were represented by a Senior StateCounsel. Thereafter:the inquiry was heid on 31 days during the
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period 5-10-1983 to 3-4-1984. At the conclusion of the hearingof evidence. Counsel for the Petitioner and Senior State Counselfor the 1st and 3rd Respondents filed written submissions. It is tobe noted that no objection was taken at any stage of the inquiryto the Senior State Counsel appearing for the. 1st and 3rdRespondents.
The Chief Magistrate submitted his report to this Court on 27-1 1-1984. At the hearing before this Court and later before theSupreme Court/ a Deputy Solicitor General appeared for the 1stand 3rd Respondents without any objection being taken by thePresident's Counsel who appeared for the Petitioner.
The Supreme Court by its order dated 26-8-1 987 held " thatthe inquiry and- the finding of the learned Magistrate areunsatisfactory for a number of reasons ". It is significant that theappearance of a Senior- State Counsel for the .1st and 3rdRespondents is;not noted by the Supreme Court, as being anunsatisfactory feature. The Supreme Court held that the issue inthe case is considerably wider than what was envisaged by theMagistrate and-made order as follows :
" We therefore quash the order of the Court of Appeal andthe' connected inquiry and findings of the learnedMagistrate and direct that a full inquiry into the real issuesin this case be held, namely, whether or not the 1stRespondent and or .other police officers abducted thecorpus. The Magistrate in his discretion would be entitled torecord any evidence which he considers relevant andnecessary to decide this issue apart from the materialsubmitted by the'parti.es.
We expect, the inspector General of Police to give all
1 assistance to the Court to help the Magistrate to arrive at afinding in this matter. "
At the .commencement of the new inquiry, on 10-11-1987.Counsel for the Petitioner, for the first time, objected to SeniorState Counsel appearing for the 1 st Respondent.
• At-the hearing of this application. Counsel for the Petitionerrelied on the following .grounds to support the objection to aState Counsel appearing for the 1 st Respondent :
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That in terms of-the order of the Supreme Court, the I.G.P.has to give all assistance to the Court to help the Magistrateto arrive at a finding in this matter.' It was submitted that aconflict of interests would arise in’ the Senior State.Counsel appearing for the I.G.P. and the 1st Respondent.The role of the I.G.P. is to assist Court'whereas the 1stRespondent has to defend.- himself' in respect of theallegations made against him by the Petitioner.
' That the Attorney General has to act in the public interest
considering the extensive stautory power vested in him. inthe administration of justice especially in the area of.criminal matters. Therefore, from a broader perspective,there , is a- conflict of duty ,in, the Attorney-Generalrepresenting the- purely partisan • interests of. the 1st. Respondent whose sole concern is to defend himself -against the allegation made by-the Petitioner. ■
. As regards the first ground of objection, Senior State Counsel,submitted that thereis no conflict of interest between the i.G'.P.and the. 1 St Respondent. The I.G.P. was cited as a Respondent; bythe Petitioner. In the prayer to the petition relief is sought againstboth Respondents. Further, the I.G.P. filed affidavit'dated 6-9-1983arid also produced the affidavits of the Detective Superintendentof Police (Colombo Northland.-ofthe-Assist'ant Superintendent of.Police (Colombo North II).marked 3R1 and 3R2. On the basis of'the material-contained'in these affidavits,'the I.G.P. has specifically ’stated that he is; satisfied that the .corpus 'was not-.arrested ordetained, by any officer attached to Kotahena Police. Thus,-it is.seen that on the material placed before Court there is no conflictOf interest.between the 1st Respondent and-the I.G.P. The order of.the Supreme Court referred to above does not result in. such aconflict. The I.G.P. is expected to assist the Court in; the sense ofcomplying, with the directions given by the Magistrate andproducing all .documents and' information necessary for a- proper-nquiry. The fact that a Senior State'Counsel represents the I.G.P.and the- 1 st' Respondent at the inquiry, cannot detract from thedischarge Of this duty by the I.G.P.
'' The 2nd ground of objection–is based on-a much broaderperspective and relates'to the rol.e'of the Attorney.General in theadministration of justice and. the statutory power that is vested inhim. '
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To support the proposition that the Attorney-General must act inthe public interest. Counsel cited the judgment of the Court ofAppeal in England, in the case of Attorney-General v.Independent Broadcasting Authority (1) Lord Denning made thefollowing observation with regard to the role of the Attorney-General, (at p. 697).
It is settled in our constitutional law that in matters whichconcern the public at large the Attorney-General is theguardian of the public interest. Although he is a member ofthe government of the day. it is his- duty to represent thepublic interest with complete objectivity and detachment.He must act independently of any external pressure fromwhatever quarter it may come. As the guardian of the publicinterest, the Attorney-General has a special duty in regardto the enforcement of the. law. "
Counsel.also cited certain dicta of the House of Lords in thecase of Gouriet v. Union of Post Office Workers and others (2).Both cases arose from the Attorney-General’s refusal to instituterelater actions. A relater action is a type of action which hasexis.ted from the earliest times in England and is one in.which theAttorney-General on the relation of individuals, including localauthorities or companies, brings an action to assert a. publicright. It is on this basis the Courts have observed that theAttorney-General is the guardian of the public interest. Therelater proceeding which is deeply rooted in English commonlaw does, not form part of our law. Therefore, the observationsmade in The English decisions do not constitute a proper guideto’the description of the role of the Attorney-General in Sri Lanka.
j_
In support of the same ground. Counsel next relied on thejudgments of this Court and of the Supreme Court in the case ofLand Reform Commission v. Grand Central Ltd. (3). In that casethe Attorney-General appeared in his private capacity as anAttorney-at-law. for the Land Reform Commission in anapplication for leave to appeal against an order of a DistrictCourt. Counsel for the Respondent raised a preliminary objectionto the Attorney-General appearing, in his private capacity. It wascontended that in view of the status and functions of the
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Attorney-General under our Constitution he has a right, ofaudience in our Courts only in his official capacity. The Attorney-. General claimed that in terms of section 41 (1) of the JudicatureAct, No: 2 of 1978 and Article 14(1 j (g) of the Constitution hehad a right to appear as an Attorney-at-law for any party who hasengaged his services. This Court and the. Supreme Court held ;firstly, that every Court has an inherent power to regulate itsprocedure in the interests of justice and a fair and expeditious .trial and in the exercise Of that power may refuse the right ofaudience to any Attorney-at-law for good reason, secondly, thatthe holder of the office of Attorney-General should be heard byCourt only in his official capacity and that the Attorney-Generalcannot serve, both state and private litigant.
It is'significant that no objection was raised in respect of aDeputy Solicitor General and a State Counsel vyho appeared inthe same case for the same, party as Attorneys-at-law. Therefore,the ratio of the Grand Central-case is limited to the finding thatthe holder of the office of Attorney-General: can appear for anyparty to a proceeding before Court only in.his official capacity. Inthe proceeding that is pending before the Magistrate's Court.Senior State Counsel is appearing in his official capacity and isrepresenting the 1 st Respondent who is a public, officer yet inservice. Therefore, the ratio in the Grand Central case does notconstitute an authority for the proposition that the.Senior StateCounsel should be denied a right of audience in this proceeding-.
■In Sri.Lanka the Attorney-General is the Chief Law Officer ofthe State. He advises the Executive comprising inter .alia of publicofficers. Section 463 of the Civil Procedure Code empowers the .Attorney-General to undertake the defence of a public officer in;acivil action. In such event the Attorney-General is substituted in-place of the public officer, as defendant. In the.case of Vettiveluv. Wijeratne (4). the Supreme Court held that without recourse tothe procedure in section 463. the Attorney-General couldnominate one of the officers to defend a public officer in a civil..action. In' such event.- the State will satisfy the judgment ifentered against such public officer. In criminal matters theposition is different. The Attorney-General does not appear.forthe defence of any person charged with the commission, of anoffence: However, section 191 of the Code.-of Criminal .Procedure Act No. .15 of 1 979 • recognises the right of the
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Attorney-General to appear for the prosecution in a "privateplaint(complaint in terms.of section 136(1) (a)) filed against apublic officer " in respect of a matter connected with or relatingto the discharge of the official duties " of such public officer. Inso appearing, the Attorney-General may offer no evidence andthereby secure the acquittal of the public officer who is accused.Thus it is seen that under our law the Attorney-General isempowered to defend public officers in civil actions and tosecure the acquittal of public officers in criminal prosecutions.Whether such power should be exercised or not is a matterwithin the discretion of the Attorney-General.' Counsel for thePetitioner has not cited any instance where the exercise of thisdiscretion lying with the Attorney-General has been interferedwith by a Court.
Further, in support of the secood ground of objection. Counselfor the Petitioner submitted that the inquiry before the Magistratecould result'in a finding against the 1 st Respondent which couldin turn lead to an investigation and/or prosecution of the'1stRespondent for the commission of offences against the corpus.He referred to the particular- issue posed in the order of theSupreme- Court ; " vyhether or .not the 1st Respondent and/orother police officers, abduqt-ed the corpus. " If the answer to this•issue, is in the-affirmative.against.the 1st Respondent, it would be
a clear finding that the 1st Respondent has committed certainOffences. He further submitted and rightly so. that the Attorney-General is vested with extensive power with regard to theinvestigation, prosecution and termination of prosecution, in
criminal' matters. Therefore, the appearance of a Senior StateCounsel for the ■ 1 st Respondent would be in conflict with aproper discharge of the statutory functions of the Attorney-General and-woUld result in an erosion of public confidence in
. the. administration of justice. ■
Indeed, there is some merit in this submission. On the otherhand, it is based on a speculative premise, that the. inquiry may
result in certain findings that may in turn lead to the exercise ofstatutory power by the Attorney-General. The affidavit filed by thePetitioner about five years ago clearly discloses the commission
of certain, offences by the 1 st Respondent. The Petitioner has not
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thought it fit to institute a prosecution against the' 1stRespondent in terms of section 136' (1 > (a) of the Code ofCriminal Procedure Act in respect of these offences. Instead ofwhich, the Court is now invited to deny the.right of audience to aSenior State Counsel on the basis of a possible prosecution atsome future-date. This aspect of the matter and the fact that noobjection was taken to the appearance of the Senior State'Counsel’ during the past five years militate against thesubmission made by the Counsel for the Petitioner.
. Senior State Counsel submitted that the inquiry before theMagistrate cannot, result in the imposition of any punishment orliability against the 1st Respondent. As-a matter of practice, in'.Writ applications, officers, of the Attorney-General's Departmentrepresent the Executive (viz. Ministers. Public Officers) in this-Court. The proviso to Article 35 (3) of the Constitution,specifically provides that proceedings relating to the exercise ofministerial functions by the President shall be instituted againstthe Attorney-General. Thus, the Constitution itself has recognisedand incorporated, to a certain extent this, practice. The fact thatserious allegations are made in such proceedings againstmembers of the Executive which may or may not result in futurecriminal actions against such persons, cannot by itself debar the:Attorney-General from representing them. If such proceedingsdisclose'material implicating a member of the. Executive withhaving committed any offence, at that stage.' the Attprney-General should consider-the material and exercise his statutorypowers with customary objectivity.: and detachment. It is notnecessary, for this.Court to impose objectivity and detachmenton the Attorney-General, in advance.
Accordingly, the Petitioner fails" in this . application. Theapplication is refused. The Chief Magistrate is directed- toproceed with the inquiry.
Application refused.