The Attorney-General of Sri Lanka is the State's chief legal adviser and also the authority that decides who is indicted in the High Court. The two functions sit in one office. England separates them, India never combined them, and Singapore combines them as Sri Lanka does.
For anyone instructing from abroad, that single fact sets the shape of any matter involving the State, and it is the point on which assumptions carried from another jurisdiction are most likely to be wrong. What follows describes the office as the Constitution and the Code define it.
How the office is filled, and for how long
The Attorney-General is appointed by the President, but not by the President alone. Article 61E(b) requires that the appointment be made on the approval of the Constitutional Council, the same safeguard that applies to the Inspector-General of Police. The office sits at Part II(a) of the Schedule to Article 41C, and Article 41C(1) provides that no person shall be appointed to a scheduled office unless the Council has approved the President's recommendation.
Tenure is worth stating carefully, because it recently changed. The Nineteenth Amendment fixed a retiring age of sixty for the office. The Twentieth Amendment repealed that provision in 2020 and it has not been restored, so retirement is now governed by the ordinary rules applying to public officers rather than by the Constitution.
What protects the office is not a retiring age but a restriction on removal. Article 41C(3) provides that no person appointed to an office specified in the Schedule to that Article shall be removed except as provided for in the Constitution or in any law, and the Attorney-General holds one of those offices. That is weaker than a fixed term and considerably stronger than holding office at pleasure, which is the Indian position described below.
The adviser: every Bill, and much of the advice the State acts on
Article 77 puts a duty on the Attorney-General that has no obvious equivalent in England. It is his duty to examine every Bill for contravention of the requirements of Article 82(1) and (2), and for any provision that cannot validly be passed except by a special majority. Where he forms that opinion he must communicate it to the President, and in the case of an amendment moved in the House, to the Speaker at the point the Bill is ready to be put.
So constitutional scrutiny of legislation happens inside the Attorney-General's Department before it happens anywhere else, and before Parliament votes.
The advisory duty in criminal matters is statutory and wider than it first appears. Section 393(2) of the Code of Criminal Procedure requires the Attorney-General to give advice, whether asked or on his own initiative, to State departments, public officers, police officers and officers of corporations in any criminal matter of importance or difficulty. Section 393(3) entitles him to summon any officer of the State, of a corporation, or of the police.
A foreign party dealing with a Sri Lankan regulator or state corporation should understand that the legal position it is being given may have come from the Attorney-General's Department, and that the same department would handle any prosecution arising out of the matter.
The prosecutor: indictment, and the power to stop
The prosecution function is not in the Constitution. It sits in the Code of Criminal Procedure, and it is worth reading closely because its breadth is easy to miss.
Section 393(1) makes it lawful for the Attorney-General to exhibit information, present indictments, and to institute, undertake or carry on criminal proceedings in five defined classes of case: where a preliminary inquiry under Chapter XV before a Magistrate is imperative or may be directed by him; where the offence is not bailable; where a State department refers a case in which he considers proceedings should be instituted; in any case other than one filed on a private complaint under section 136(1)(a) which appears to him to be of importance or difficulty, or which for any other reason requires his intervention; and in any case where an indictment is presented or information exhibited in the High Court by him.
The fourth limb is the wide one, and it is worth noting what it does not reach: a case begun by private complaint in the Magistrate's Court is expressly carved out of it. In practice serious crime is prosecuted in the High Court on an indictment presented by the Attorney-General.
The corresponding power to stop is section 194(1). At any stage of a High Court trial before the verdict is returned, the Attorney-General may, if he thinks fit, inform the court that he will not further prosecute the accused on the indictment or on any charge in it. All proceedings on that indictment or charge are then stayed and the accused is discharged. Section 194(2) allows the information to be given orally or in writing under his hand.
This is Sri Lanka's version of the nolle prosequi, and unlike the English equivalent it is exercised within a statutory code rather than as a prerogative survival.
The constitutional litigant who is always noticed
Article 134(1) requires that the Attorney-General be noticed, and gives him the right to be heard, in all proceedings in the Supreme Court under its jurisdiction in Articles 120, 121, 122, 125, 126, 129(1) and 131. Those are the constitutional determinations on Bills including urgent Bills, the interpretation jurisdiction, fundamental rights applications, presidential references, and questions of parliamentary privilege.
The practical consequence for a foreign client is simple. A fundamental rights application is brought against named respondents, but the Attorney-General will be in the case whether or not anyone joined him, because Article 134(1) requires that he be noticed.
How four other jurisdictions arranged the same functions
The comparison below is not decoration. Foreign counsel arriving from any of these systems will carry an assumption about what an Attorney-General is, and in three of the four cases the assumption is wrong for Sri Lanka.
| Jurisdiction | Appointment and tenure | Prosecutes? | Political office? |
|---|---|---|---|
| Sri Lanka | President, on the approval of the Constitutional Council (Art. 61E(b)); removable only as provided by the Constitution or by law (Art. 41C(3)); no constitutional retiring age since the Twentieth Amendment | Yes. Presents indictments and may discontinue (CrPC ss. 393, 194) | No. A public officer, not a minister |
| Singapore | President, acting in his own discretion, concurring in the Prime Minister's advice (Art. 35(1)); the PM must first consult the outgoing AG, the Chief Justice and the Chairman of the Public Service Commission (Art. 35(2)); may be appointed for a fixed period, otherwise holds office to 60 with a possible extension (Art. 35(4)) | Yes. Power exercisable at his discretion to institute, conduct or discontinue any proceedings for any offence (Art. 35(8)) | No |
| India | President appoints a person qualified to be a Supreme Court judge (Art. 76); holds office during the pleasure of the President | No. The Constitution gives the office no prosecution function; prosecutions are conducted by public prosecutors | Not a minister, but holds office at pleasure and may speak in either House of Parliament (Art. 88) |
| England and Wales | A Minister of the Crown, appointed and removed with the government of the day | Not directly. The Director of Public Prosecutions conducts prosecutions under the superintendence of the Attorney General (Prosecution of Offences Act 1985, s. 3(1)) | Yes. A law officer of the government |
| United States | President, by and with the advice and consent of the Senate (28 U.S.C. s. 503) | Yes, through the Department of Justice, which the Attorney General heads | Yes. A Cabinet officer, serving at the President's pleasure |
Three things fall out of that table.
Sri Lanka and Singapore made the same choice on the substance. Both vest advice and prosecution in one non-political office, and both interpose an independent check on the appointment: Sri Lanka's Constitutional Council, and in Singapore an elected President exercising a personal discretion over the Prime Minister's advice. They differ on tenure. Singapore's Attorney-General may be appointed for a fixed period or else holds office to sixty; Sri Lanka's has neither a term nor a retiring age, and relies on the removal restriction instead. Singapore states the prosecution power in its Constitution, in terms wider than anything in the Sri Lankan Constitution: Article 35(8) gives the Attorney-General power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence. Sri Lanka reaches a similar place through the Code of Criminal Procedure instead.
India separated the functions by never joining them. Article 76 makes the Attorney-General for India the Government's legal adviser with a right of audience in all courts in the territory of India, and stops there. He holds office during the pleasure of the President, which is a weaker protection than Sri Lanka's restriction on removal, and he does not decide who is prosecuted. Article 88 also gives him the right to speak in either House of Parliament, though not to vote — a proximity to the legislature the Sri Lankan office does not have. An Indian lawyer who assumes the Sri Lankan office is the same thing will underestimate it considerably.
England split the functions between two people. The Attorney General is a government minister who superintends; the Director of Public Prosecutions actually prosecutes. Section 3 of the Prosecution of Offences Act 1985 provides that the Director discharges his functions under the superintendence of the Attorney General, and gives the Director the duty to institute and conduct proceedings where the importance or difficulty of the case makes it appropriate. That phrase is worth pausing on, because the same test of importance or difficulty appears in section 393(1)(d) of the Sri Lankan Code. The wording is shared; what differs is who holds it.
The United States fused the roles but made the office political. The Attorney General is appointed by the President with the Senate's consent and heads the Department of Justice, and sits in the Cabinet. An American lawyer will therefore assume a Sri Lankan change of government changes the Attorney-General. It does not, because the office turns on age rather than on an administration.
What this means in practice
Each arrangement in that table answers the same two questions differently: who decides to prosecute, and how is that person placed in relation to the government of the day.
Sri Lanka's answer is a non-ministerial office, an appointment approved by the Constitutional Council, and a restriction on removal under Article 41C(3). The advisory and prosecutorial functions are held together rather than divided between two office holders.
One consequence of the design is that the State speaks with a single legal voice across advice and prosecution. It is not an unusual arrangement: Singapore reaches the same result through its Constitution, and the office is organised that way in a number of jurisdictions.
For a practitioner the consequences are practical. An application against a public authority will be answered by the Attorney-General whether or not he was made a party, because Article 134(1) gives him that right. And in a criminal matter bound for the High Court, the indictment is presented by the Attorney-General under section 393, so representations on whether a case should be indicted are made to the Department before any hearing begins.
If you are instructing from abroad
Three practical points, in the order they usually arise.
- Do not assume the office matches your own. If you are coming from England or India, the Sri Lankan Attorney-General is materially more powerful than the office of that name at home. If you are coming from the United States, it is materially less political.
- In any matter touching the State, expect the Attorney-General's Department on the other side, including in proceedings where you have not named it. Article 134(1) puts it there by right in the Supreme Court's constitutional jurisdictions.
- In a serious criminal matter, the critical decision is the indictment, and it is taken by the Attorney-General under section 393. Representations made before that point are directed to a different audience, and to a different standard, from anything argued afterwards.
None of this is obscure and none of it is hidden. It is simply a different allocation of the same functions, and the mistakes foreign lawyers make in Sri Lanka come from assuming the allocation is the one they are used to.
