Staying the hand of justice?

  • The withdrawal of indictments by the AG and its impact on public trust in the legal system

BY Sumudu Chamara

The need for the country’s legal system to be closer to the public than it is now has been emphasised on many occasions in the recent past, and when the people do not understand what is happening in courts or do not see what they think is justice, it can gravely affect the relationship between the people and the legal system. That is why regardless of the legality of the decisions in certain cases, the people remain doubtful as to whether justice was in fact delivered.

The Attorney General’s (AG) powers to proceed or not to proceed with legal action after filing indictments were questioned and criticised due to two recent incidents where the AG decided to withdraw indictments relating to two separate cases against Finance Minister and former Economic Development Minister Basil Rajapaksa and former Navy Commander and Admiral of the Fleet Vice Admiral Wasantha Karannagoda, years after filing indictments against the duo.

Indictments against Rajapaksa and several officials of the Divi Neguma Department had been filed over allegations of misappropriating Rs. 36.5 million of public funds belonging to the Divi Neguma Department during the 2015 Presidential Election season to purchase and distribute galvanised iron pipes, and subsequently, on 15 October, the Colombo High Court discharged the duo from the case. Indictments against Karannagoda had been filed in connection with his alleged involvement in the abduction and disappearance of 11 youths during the 2008-2009 period, and the AG, on 13 October, informed the relevant court that he wishes to withdraw it.


A number of parties expressed vehement opposition against the AG’s decisions to withdraw indictments in the above-mentioned two cases, mainly due to the controversial nature and the gravity of the two cases. Moreover, the two cases had attracted the attention of human rights activists and the foreign media.

National People’s Power (NPP) lawyers, on 17 October, expressed concerns about Rajapaksa’s case, questioning the independence of the ongoing legal proceedings against people of power and rank. NPP Attorney-at-Law Sunil Watagala said that the AG’s Department has released a number of individuals, including Rajapaksa, Highways Minister Johnston Fernando, and Agriculture Minister Mahindananda Aluthgamage, from charges filed by the previous AG, and that usually, a comprehensive investigation is carried out prior to filing charges against any person. Pointing out that public funds are utilised to carry out those activities, Watagala questioned the AG’s Department’s sudden withdrawal of charges, even after such a rigorous investigation process.

Meanwhile, President’s Counsel (PC) Singhanathage Tharapathi Jayanaga, speaking to The Morning, acknowledged that in a context where the filing of indictments involves a lengthy process and a number of parties of different positions, withdrawing indictments in a non-transparent manner is not advisable.

Pointing out this process, which according to him takes up a lot of money and involves a lot of activities, he added: “Indictments are filed through this rigorous process, and we cannot have any lapses in it. If there are any lapses, they can seek to amend it. Even if the AG’s Department was not bound to give reasons to the public, they are bound to give reasons to the public, as they have spent public funds for it. The AG decides to withdraw indictments very rarely. Once indicted, the AG can leave it to the judge/s. The moment an indictment is withdrawn, it gives a message to the public. The message is that a very serious mistake has been made during the process of filing indictments against a certain person, and that that is why the indictment is being withdrawn. A person holding a position such as the AG cannot be making such mistakes. Once indictments are filed, the AG should try to stick with that decision, and draw the attention of the judge/s hearing the case if there are any relevant matters.”

He also noted that withdrawing indictments in this way implies that the AG who filed these indictments in the first place has made a severe mistake, and that this is a very bad example portrayed to the public.

Legal situation and the AG’s powers

To shed some light on some of the concerns this discussion leads to, i.e. whether the AG can withdraw indictments of his own accord, what factors should be taken into account by the AG, and how it should be done, The Morning also spoke to former Bar Association of Sri Lanka (BASL) President and incumbent Justice Ministry Senior Advisor Udaya Rohan De Silva PC.

De Silva PC explained that the AG is legally allowed to withdraw indictments in several situations, depending on the evidence of a case or the nature of the case regarding which indictments have been filed.  

“According to the criminal law, the AG has full responsibility to take action against offences committed against the State. In our legal system, usually, when a crime takes place, it is considered not a personal case, but a case against the State. That is why the AG has been vested with that power, and there is a specific chapter with regard to the AG’s role in the existing Code of Criminal Procedure (CCP). The AG represents the State in all circumstances. Also, even though the President has immunity, making it impossible to file cases against him, in certain circumstances, such as in the event of a fundamental rights (FR) petition, the Constitution provides for the ability to file cases against the AG instead of the President. In such situations, it is the AG that responds to such cases on behalf of the President. In accordance with the provisions of the CCP, from the time of the commencement of the preliminary investigations until the hearing of an appeal is concluded, the AG has the power to intervene at any point. He can advise the Police with regard to investigations and in accordance with the reports submitted by the Police after carrying out investigations, the AG can file cases either in a magistrate’s court or in a high court. After filing cases at a magistrate’s court, the Police can proceed with the hearing, and in special circumstances, a representative of the AG can do so. However, when the case is filed in a high court, except in the case of a bribery case, all other types of cases are handled by the AG, i.e. state counsels that represent the AG. They submit the signed indictment, and once the indictments are submitted to the court, the court allows the AG to handle such cases. That is the normal procedure.”
He explained the circumstances in which the AG can withdraw indictments.

“Sri Lanka’s legal system includes important legal provisions in this regard; i.e. in certain circumstances, the AG can make an intervention before indictments in an ongoing case are filed. Before making a final decision regarding an indictment, a suspect can, after being presented in the magistrate’s court, make a submission before the AG, and after taking into account the presented facts, if the AG deems that those facts are valid and/or that further investigations are necessary before making a final decision based on those facts, in such situations, the AG can release the suspect without proceeding with the case.

“Also, before the commencement of a hearing, after filing indictments, or after the receipt of charge sheets, a lawyer can inform the AG that these proceedings are being continued without taking into consideration all the facts and/or that new facts have been revealed, and the AG can then decide to withdraw indictments before the commencement of the hearings. Additionally, during a hearing, the AG can say that even though an indictment has already been filed, considering the evidence that have been presented until that point, and if no important evidence would be provided after that point, on that basis, to withdraw the indictments.

“Further, at any point, before the pronouncement of the verdict of a case, the AG can say that there is no purpose of proceeding with it any further. In addition, after a case is referred for appeal, either before it is heard or during the hearing, the AG can say that he is not canvassing the conviction of that particular case. It means that no requests are being made to further affirm the conviction made by a judge/s, and that it is evident that the judge/s had reached the verdict in an improper manner. At any point, the AG can consider all the relevant facts, and through a document signed by the AG himself, declare that the hearing should not be continued. This is known as nolle prosequi, which means that the AG is not wishing to proceed with the case.”

De Silva PC said that it is the duty of the prosecution, i.e. in Sri Lanka, the AG, to inform the court when there is no purpose of proceeding with a case, and that this has been referred to in previous court verdicts as there being “no point in flogging a dead horse”. He stressed that it is an accepted concept in the law to stop the proceedings in the event the proceedings of a case do not show any promising signs.

He described two recent incidents regarding the withdrawal of indictments or recommendations to do so.
“The cases that were withdrawn by the Commission to Investigate into Allegations of Bribery or Corruption (CIABOC) Director General are one type of cases. Those cases have been withdrawn under the condition that cases would be filed again. The reason, as pointed out by lawyers, is that there is a certain method of filing cases, and that this method requires the signature of not only the CIABOC Director General, but also of all three commissioners, which is a mandatory requirement.

“This does not mean that cases cannot be filed against the accused of that case again. Also, the Presidential Commission of Inquiry (CoI) appointed to look into incidents of political victimisation during the 2015-2019 period, which was headed by Supreme Court Judge (Retd.) Justice Upali Abeyratne, had recommended that certain accused should be released from certain cases immediately. When it comes to criminal cases, such steps cannot be taken directly. However, the President can refer the recommendations to the AG, and the AG can take steps to look into those recommendations as well as the relevant factors regarding the cases and recommendations, and thereafter, consider whether those cases can be continued.”

When queried as to whether the AG is legally bound to present reasons for the withdrawal of indictments when doing so, De Silva PC said: “There is no legal requirement for the AG to state reasons as to why he wishes to withdraw an indictment, the AG being the one who files indictments. Whether the AG wants to mention reasons is up to him. However, no law states that the AG is bound to provide reasons which are satisfactory to the court.”

However, Jayanaga PC was of the opinion that even though the AG has the power to withdraw an indictment, if the case is being heard in a court and the judge/s asks/ask for reasons, the AG has to justify his decision before the judge/s hearing the case in question. “If the AG wishes to withdraw, even though no judge is going to stand in his way, the judge/s hearing the case can ask for reasons, because it is a case that is being heard in a court.”

The AG withdrawing indictments has happened on many occasions before. As some who commented on the matter pointed out, there is a question about the public’s right to know the reasons for and the process of withdrawing indictments, because, at the end of the day, filing indictments is a process which incurs a large amount of public funds, and the time and labour of public officials of several institutions which are maintained by taxpayers.

Moreover, as Jayanaga PC pointed out, paying attention to the message given out to the public by the withdrawal of indictments, which play a vital role in serious cases, is also necessary, and no room should be left for the public’s faith in the legal system to be negatively affected.