The plight of Sri Lanka’s elephants reflects the plight of the country | Print output
Recent Supreme Court remarks on the importance of the independent exercise of the enormous powers of the Attorney General conferred on that office by law are nothing new from a cynic’s point of view.
Elephant Smuggling and the Law
These warnings were reportedly issued during the recent bank approval of an extremely grave case brought up by an environmental group over a cabinet paper on “A Trial and Investigation Policy Relating to Tamed Elephants” carried out and ownership transferred. ‘ This paper was presented to the Cabinet of Prime Minister Mahinda Rajapaksa and Minister for Wildlife and Forest Conservation CB Ratnayake.
The court rejected procedural objections of the Federal Public Prosecutor against the challenge. The petitioner alleged that the Prime Minister, the Minister for Wildlife and the Cabinet of Ministers interfered with the attorney general’s legal powers by instructing him to withdraw all proceedings against those who keep illegally tamed elephants and to return the animals to precisely those individuals who bought them from the traffickers. This clearly violated the law.
This allegation has “far-reaching consequences if it is true,” the Court found. The Attorney General was reminded that âAny dictation from any direction will jeopardize the Attorney General’s independence unless such dictation is permitted by law; any compromise on the prosecutor general’s independence will negatively affect the rule of law. âThese remarks have been made over and over by the Supreme Court, but appear to have had little effect on the operation of the state law firm.
Obviously wrong political decision
This latest interjection comes in the context of these petitions contesting a manifestly wrong policy decision regarding the treatment and custody of domesticated elephants. This is perhaps the most telling indication of how far we have degenerated as a nation. Because of all the many things that have gone wrong in this country in the last few decades, our inhumane treatment of these majestic animals must surely be classified as despicable at the highest level. This was a fight elephant conservationists had fought for years, but in vain.
Registering elephants without proper controls over how they were caught and without what is commonly referred to as “pedigree records” was a major focus of this struggle. Public outrage about this had no impact on the barbaric smuggling of elephant calves. Monks and politicians have benefited from the illegal sale of baby elephants. In this context, the judicial warnings sent to the Attorney General have a distinctly ironic aftertaste in a context in which the plight of the Sri Lankan elephants reflects the plight of the country.
On the other hand, it must be reiterated that these are not new feelings. What must follow is not only admirable sentiments, but also a judicial willingness to examine the evidence on which the Attorney General’s decision is based. Therefore, the courts need to broaden this willingness to recognize that the Attorney General’s discretion is not absolute. For example, why should mandamus not be available to order the Attorney General to indict or to consent to indictment by others, under the laws that give him exclusive control over the initiation of proceedings?
Look at the Attorney General’s discretion
Citizens can be harmed by inflammatory and regular racist abuse by an organization whose leader the Attorney General refuses to actually harm. You could rightly claim that his refusal was based on political or general considerations and was in bad faith. You can therefore request that you force the decision on your application. These are really serious requests, aren’t they? The Court of Justice must interpret the meaning of mala fide in such a way that prosecutorial decisions can be reviewed if they are tainted with inappropriate motives, arbitrariness, discrimination and a material or serious distortion of reason.
In principle, there must be no difference between holding the Attorney General and other public officials accountable. Both must exercise discretion with fairness, honesty, appropriateness and discrimination. You only need to act with relevant considerations in mind. In the absence of these criteria, the Attorney General should be held accountable by the courts. For example, when bringing an indictment, the attorney general’s decision must be based on legal criteria and not be arbitrary. In addition, there must be certain public interests and benefits.
For example, it must be judged that the statement in question is likely to disrupt racial or religious harmony, affect Sri Lanka’s international relations, or undermine public confidence in the maintenance of law and order or the administration of justice. In general, our courts have been reluctant to intervene, even when a lack of adequate investigation and certain omissions on the part of Crown officials were found. Typically, this is seen as a failure of the investigator and not of the Attorney General.
Stricter standards of verification are required
The “exceptional circumstances” test was used to actually kick in to overturn the attorney general’s decision. This is seen in the extreme examples that the Court generally cites as exemplary cases where interference with the Attorney General’s discretion in granting sanctions might be warranted. The judicial reasoning was based on the assumption that the public officials’ faulty investigations could not be viewed by the attorney general.
However, this is opposed by the fact that the state is liable for violations of fundamental rights, regardless of whether the investigating officers or the public prosecutor’s offices could be blamed. Strict standards must be adhered to. What we see now is the political use of the Attorney General’s discretion, which is detrimental not only to that office but to the judicial process in general.
The responsibility of the judiciary is very high in this regard. It is not allowed to stick to excellent statements from the bank, which, however, have no effect beyond the respective day.
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