Untitled - International Commission of Jurists

prosecutor’s office would be to institute proceedings (criminal prosecutions)
where the Human Rights Commission (with the assistance of its investigating
unit) has found sufficient evidence for that purpose. We also recommend that
while the salary of the proposed independent prosecutor be made a charge on
the Consolidated Fund, the nomination to the office be made by and ratified by
a majority of the Members of Parliament. 486
2.3. Appeals from Acquittals
In certain instances, the non-filing of an appeal from an acquittal has been wholly due
to the refusal of the Attorney General. In terms of the applicable law, an appeal from
an acquittal, by law, has to be approved by the Attorney General (AG). In the
Mylanthenai case, for example, despite requests made to the AG to appeal, the AG
refused to proceed with any appeal or grant his approval for the same citing various
technical grounds. 487
As also seen above, in relation to the acquittals by the High Court in prosecutions
emanating from the findings of the 1994/1998 Disappearances Commissions, none of
these cases have been appealed from despite the manifestly unsatisfactory nature of
the acquittals.
3. Judicial Review of Attorney General’s Decisions
Given the controversial role played by the Attorney General in cases such as Richard
de Zoysa and Mylanthanai, in which prosecutions do not get off the ground or
acquittals that shock the public conscience were accepted without appeal, the question
of judicial review of AG decisions becomes important, particularly where emergency
laws are invoked.
Pertinent case law is illustrative. In King v. Noordeen, 488 a question arose as to the
jurisdiction of the Supreme Court to entertain applications in review of the AG’s
refusal to sanction an appeal from an acquittal, or in a similar class of circumstances
which would include the powers of intervention of the Attorney General where the
Magistrate discharges an accused. The Supreme Court held that it would not hesitate
to exercise its powers of revision provided that proper materials had been laid before
Court to call for its exercise and provided that the heavy burden put on the applicant
to establish a case of positive miscarriage of justice is satisfied. In AG v.
Kanagaratnam, 489 the Court reviewed the Magistrate’s orders in relation to nonsummary
proceedings, prior and subsequent to the indictment. The Court limited its
review to magisterial orders in the light of instructions given by the AG, and chose
not to pronounce more broadly on its powers to review the exercise of statutory
powers by the AG, himself.
486 Final report of the 1994 Western, Southern and Sabaragamuwa Disappearances Commission,
Sessional Paper No. V, 1997, at p.83.
487 Interview with attorneys-at-law watching the interests of the victims in the case, 09.07.2009.
488 [1910] 13 NLR 115.
489 [1950] 52 NLR 121.
137