Can a Magistrate convict and jail AG, a Superior Court Judge or minister for expressing his opinion?

Section 70 of the Bribery Act needs to be reviewed


By M M Zuhair, PC

President’s Counsel Hemantha Warnakulasuriya has referred, in a commendable write-up published in The Island 8th February 2018, to the recently filed case alleging corruption under section 70 of the Bribery Act against the then Attorney-General, who later on became the country’s Chief Justice and the then Deputy Solicitor-General, who is presently a sitting Judge of the Court of Appeal.

Warnakulasuriya has rightly pointed out that the legal fraternity was aghast at the accusation of corruption. He quickly cautioned the reader against rushing to the conclusion that the then top legal officers of the state were involved in what is typically understood by the public as accepting a bribe or gratification. The accusation relates to a legal opinion given seven years ago to the government by the then DSG with the approval of the then Attorney-General. The charge under section 70 of the Bribery Act is that the opinion was given by the DSG and that the Attorney-General had ‘abetted’ the DSG in approving the opinion, both acting as ‘public servants’ with the intention or knowledge of granting ‘unlawfully’ a benefit/favour or advantage to a person named in the report against whom evidence of criminal misappropriation had been disclosed, it is now alleged.

The Bar Association of Sri Lanka (BASL) has expressed grave concern over the initiation of these criminal proceedings. The BASL has, in a media statement, said that the concern does not stem from the stand point of the individuals concerned but as a matter ‘affecting the Bar, independence of the judiciary, rule of law and the interests of the public at large’, which the BASL statement should have explained further for the benefit of the public.

This article is intended to place before the public briefly the corrosive effect this case may have on the well-established legal system in the country vis-a-vis the judiciary, the Bar as well as the Executive headed by the President. No improper motives are being alleged or drawn against anyone responsible for the prosecution of this case. I will refer later on in this write-up to the consequences, proceedings of this nature could impact upon the Supreme Court down to the Magistrates Court, the Cabinet of Ministers down to the humblest public servant, if the views and opinions of these institutions are going to be questioned and reviewed by persons not specifically authorized to do so but doing so under allegations of violation of section 70.

It is not being argued that officials holding public office are beyond review. The conduct of the President of the Republic, for instance, can be reviewed and impeached by Parliament on grounds set out in the Constitution, which includes misconduct, corruption or the commission of an offence involving moral turpitude. The tenure of office and the independence of the Judges of the Superior Courts are constitutionally secured but the President upon a duly approved ‘address of Parliament’ can remove a Judge on the ground of ‘proved misbehaviour or incapacity’. The official conduct and the opinion expressed by the Attorney- General can be the subject of debate in Parliament and can also be reviewed and set aside by the Superior Courts in appropriate proceedings initiated by a party claiming for instance the violation of his fundamental rights. A wrong decision by a lower Court can be appealed to a higher Court.

In other words, the system has checks and balances, hierarchical in character, however imperfect they may be. Any of them can be prosecuted in the original courts of criminal jurisdiction for the alleged commission of any offence in his personal capacity, while holding public office. But, the question raised here is whether the Attorney-General, or for that matter a Judge, an Attorney at Law, a Minister or public servant can be prosecuted and jailed for expressing his opinion in his official capacity, even in a case where the opinion is wrong or erroneous?

This appears to be the first time that a Magistrate is being called upon to review the alleged ‘wrongfulness’ or the ‘unlawfulness’ if any, arising from a legal opinion expressed by the Hon. Attorney-General of Sri Lanka. The allegation placed before the Magistrate purportedly under section 70 of the Bribery Act requires the Magistrate to review the legal opinion given to the Government by the Attorney-General and substitute therefore the Magistrate’s opinion on the question, whether the Attorney-General’s legal opinion was given with the intention or knowledge of causing ‘wrongful’ or ‘unlawful’ benefit, favour or advantage to any person. In other words, the Magistrate is being asked by the prosecutors in the case to examine the intentions and/or knowledge of the Attorney-General when he gave his legal opinion. I do not think the legislature ever intended Section 70 to be used for such purposes, though section 70 (d) gives such an impression. According to section 70 (d), the offence is complete when a public servant under the circumstances referred to earlier ‘participates in the making of the decision’ which in this case was the ‘opinion’ expressed by the Attorney-General.

A notable feature in section 70 is that there is no need to prove, unlike in the case of the other offences in the Bribery Act, that the public servant benefitted from any form of ‘bribery’ or ‘gratification’. Section70 needs closer examination both by the legislature and the judiciary as it can become a serious threat and impediment on the right and indeed the duty of public servants to form opinions fearlessly, take clear decisions based on the opinion and to act thereon without being prosecuted years later and more so after a change of government. A corrosive effect of prosecuting over an ‘opinion’ or ‘decision’ without evidence of any ‘gratification’, could be the prosecutor of this case finding himself being prosecuted regrettably under section 70, for his decision to prosecute, probably after a change of government. Indeed, that could not be the purpose of section 70 intended by Parliament.

To get back to the point, the Attorney-General conveyed his advice in the form of an opinion. Excepting a superior Court, namely the Supreme Court and the Court of Appeal, how can it be alleged before a Magistrate or even a High Court that the opinion of the Attorney-General was ‘unlawful’ or had ‘conferred a benefit to someone by unlawful means’ or ‘any unlawful benefit was conferred to someone’ in as much as the Attorney-General was entitled in law to express his opinion, a lawful and privileged communication? Any Court, including a Magistrate Court, District Court or the High Court can certainly over-rule the opinion of the Attorney-General or his representative arising in a proceeding in Court. But to go further and prosecute and jail the Attorney for expressing a wrong opinion can never be what Parliament intended when enacting section 70 of the Act!

How did a ‘lawful’ and privileged communication, in this instance, become ‘unlawful’? The allegation is that two committees had found material disclosing criminal offences and that therefore the argument is that the Attorney-General had no alternative but to accept and act according to those two reports. Such an argument is ridiculous because it seeks to negate the right of the Attorney-General to express his independent opinion after a consideration of all the facts and circumstances. Furthermore the mere appearance of a possible criminal offence is insufficient to approve a prosecution. The Attorney-General must be satisfied that there is adequate evidence to prove the case ‘beyond any reasonable doubt’. There were times when prima facie evidence was considered sufficient to approve a charge. Such a minimal standard led to Courts being burdened with cases that ended up in acquittals. It benefitted lawyers but not litigants or the public whose taxes pay for the cost of the prosecution.

The better view is that there must be sufficient evidence to establish the case for the prosecution ‘beyond any reasonable doubt’ for approving the filing of charges. This is exactly what the country’s President said recently; there must be sufficient evidence to ensure the conviction of particularly politically involved persons. The opinion, in each case referred to the Attorney-General, is entirely for the Attorney-General to form.

Reference was made earlier to Magistrates being asked to review the opinion of the Attorney-General and substitute therefore the Magistrate’s opinion. Assuming for a moment that the purported accusation before the Magistrate is tenable within the interpretation of section 70 of the Bribery Act, but the Magistrate at some stage in the proceedings expresses his opinion and orders that the suspects must be discharged, as he is entitled to order and accordingly for reasons given discharges the suspects, it would be equally possible, for the same accusations alleged here, to accuse the Magistrate and prosecute him under section 70 of the Bribery Act for his opinion of discharging the suspects alleging"knowingly causing ‘wrongful’ or’ unlawful’ " (in the opinion of the prosecutor)"benefit, favour or advantage to the suspects".

If that be so, one need not go by appeal or revision to a higher court to review the order and opinion of the Magistrate but take the inexpensive and easier course of complaining of violation of section 70. A dissatisfied litigant can harass the Magistrate by alleging violation of section 70. It may be argued that the order of discharge by the Magistrate is not a ‘wrongful or unlawful’ benefit, favour or advantage to the suspects but a lawful one. So is the right of the Hon. Attorney-General to express his opinion, even in a matter where the AG had knowledge that some person may benefit from his opinion. Such an opinion cannot become or be alleged to be‘unlawful’ even where the AG had knowledge that someone will benefit from his opinion. The opinion of the Attorney-General or any public servant or any Attorney at Law can be the correct opinion or an incorrect or wrong(ful) opinion. It is human to err and that is why a review by way of appeal to a higher body is the correct, lawful and accepted procedure. Prosecuting and jailing the opinion maker, appears archaic and barbaric.

On this point, this is what Warnakulasuriya says: "The Legal Profession and the Bar Association are very concerned about the fact that the mere opinion of the Attorney-General, which may be wrong like the other opinion of the Attorney-General that the President had six years to conclude, could be the subject matter of an inquiry under section 70." Clearly, Parliament in enacting section 70 could not have intended this process.

What is arguably clear is that section 70 cannot be utilised, in effect,to challenge or review the opinion of the Attorney-General given to the government or to Parliament, which, as of right, he is entitled and bound to give or similarly a Minister’s recommendation placed before the Cabinet, the Magistrate’s opinion and verdict given in any proceedings before him or the legal opinion of an Attorney at Law given to his client. (Part II will appear tomorrow)

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