By A special Correspondent
Advising one party whose position may be at odds with the President’s position could put the Attorney General in a pickle, which may explain why he has declined to give an opinion, lawyers told the Daily FT.
The experts said that, based on views expressed by President Sirisena and the letter from the Speaker querying the constitutionality of Wickremesinghe’s sacking, it would have been clear to the AG that they could be opposing parties.
However, experts added that, be that as it may, as a matter of propriety, the AG should advise the President of the unconstitutionality of his actions, and while presenting the position of the President to court (what the President claims and what he feels), the AG owes a duty of care to uphold the Constitution as all civil servants must – by stating to court the correct position under the Constitution (what the law is) without being ‘wishy-washy’ or trying to push clearly wrong arguments on constitutional interpretation just to keep his client happy.
This, however, requires a degree of integrity and, particularly in the current context, great courage that is often found lacking in the system today, they added.
The 19th Amendment diluted Presidential immunity provisions, making it possible to challenge an official act of the President by a Fundamental Rights Action in the Supreme Court. In such an event, by law the case has to be filed against the Attorney General as representing the President, and not the President in person. Thus, the AG will be required to defend and represent the actions of the President, these experts said.
Lawyers’ opinion follows the Attorney General refusing to provide his viewpoint yesterday on the sacking of Prime Minister Ranil Wickremesinghe, according to a statement from the Speaker’s Office – a day after a newly appointed Government Spokesman claimed the AG believed the sacking was constitutional and when the country’s political crisis had entered its sixth day.
Holding the first ‘Cabinet’ press briefing of the newly installed Government on Tuesday, Minister Mahinda Samarasinghe, who was recently appointed Government Spokesman, had claimed the AG had provided an opinion that President Maithripala Sirisena’s sacking of Wickremesinghe was legal. Minister Samarasinghe also claimed at the briefing on Wednesday that Speaker Karu Jayasuriya was concealing the ruling. Yesterday, Speaker Jayasuriya’s Office released a statement, contesting Minister Samarasinghe’s charge.
He had received no such opinion so far, and the statement was false, the Speaker’s Office said.
Speaker Jayasuriya also released a copy of a letter from Attorney General Jayantha Jayasuriya, dated 30 October, in response to a letter dated 28 October from the Speaker’s Office.
Daily FT learned that AG Jayasuriya was out of the island and only returned to Colombo on Monday.
Speaker Jayasuriya sought an opinion from the AG as calls mounted for him to reconvene Parliament, which was prorogued last Saturday, soon after President Sirisena sacked Wickremesinghe as Prime Minister and installed former President Mahinda Rajapaksa in the post. Constitutional experts have called the sacking unconstitutional, with some analysts even calling the removal a ‘constitutional coup’.
Legal experts said the AG had to be cautious in his response because he may be compelled to represent the position of President Sirisena in future litigation.