NECESSITY OF A SPECIAL PROSECUTOR

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By 2018-01-13

by Lakshman I. Keerthisinghe

Power does not corrupt. Fear corrupts. Perhaps, the fear of loss of power.
- Corruption Free India
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Media reported that the Report of the Commission appointed by the President for inquiring into the Central Bank Bond issues that took place in 2015/2016 had been handed over to the President. The President had forwarded the Report of the Bond Commission to the Attorney General for prosecuting the accused. Making a statement to the media on the Recommendations of the Bond Commission, President said that the Commission appointed to investigate alleged irregularities in the sale of treasury bonds has recommended the prosecution of the country's former Finance Minister on bribery charges and for allegedly giving false evidence before the Commission. Has the former Finance Minister been made a scapegoat while others got away, is the question in the public mind.

In the meantime, it has been observed that the necessity of a special prosecutor or independent counsel for Sri Lanka has been stressed both in legal and political circles. In the United States, a special prosecutor (or special counsel or independent counsel) is a lawyer appointed to investigate and potentially prosecute a particular case of suspected wrongdoing for which a conflict of interest exists for the usual prosecuting authority. Other jurisdictions have similar systems. For example the investigation of an allegation against a sitting President or Attorney General might be handled by a special prosecutor rather than by ordinary prosecutors who would otherwise be in the position of investigating their own superior. Investigations into other persons connected to the Government but not in a position of direct authority over the prosecutor, such as cabinet secretaries have also been handled by special prosecutors.

The term is not specific to the Federal Government. The concept originated in US State Law which provides that State Courts have traditionally appointed special prosecutors when the regular Government attorney was disqualified from a case, whether for incapacitation or self-interest. While the most prominent special prosecutors have been those appointed since the 1870s to investigate Presidents and those connected to them, the term can also be used to refer to any prosecutor appointed to avoid a conflict of interest or appearance thereof. For example, because District Attorneys' offices work closely with Police, some activists argue that cases of Police misconduct at the state and local level should be handled by special prosecutors.

The terms 'special prosecutor', 'independent counsel', and 'special counsel' have the same fundamental meaning, and their use (at least at the federal level in the US) is generally differentiated by the time period to which they are being applied. The term 'special prosecutor' was used throughout the Watergate era, but was replaced by the less confrontational 'independent counsel' in the 1983 reauthorization of the Ethics in Government Act in the US. The first federal special prosecutor, John B. Henderson, was appointed by Ulysses Grant in 1875 to investigate the Whisky Ring scandal. Before his 25 May, 1973 appointment as Richard Nixon's Attorney General, Elliott Richardson had agreed at his Senate confirmation hearing to appoint a Watergate special prosecutor, and so immediately on taking office appointed Archibold Cox. As part of his investigation, in July of that year, Cox first requested and then subpoenaed the Nixon White House Tapes; secret recordings Nixon had made of conversations in the Oval Office and elsewhere. The Nixon administration refused to produce the tapes citing executive privilege, and the dispute was fought in Court until October.

After a Court of Appeals instructed the President to comply with the special prosecutor's subpoena, Nixon ordered the special prosecutor fired. The new special prosecutor Leon Jaworski continued Cox's pursuit of the White House tapes, which were ultimately released following the Supreme Court decision in United States v.Nixon. Nixon resigned the Presidency on 9 August, 1974 inspired in part by Watergate, in 1978 Congress passed the Ethics in Government Act, which among other things established formal rules for the appointment of a special prosecutor.

At the present time in order to gain public confidence it would have been preferable if the recommendations of the Bond Commission could have been referred to an independent counsel or special prosecutor. But the necessary legislation has to be in place.

In conclusion, it must be stated that it is advisable in the interests of good governance to enact legislation for the appointment of a special prosecutor or independent counsel to prosecute in cases where conflict of interest arises when a Government prosecutor or the Attorney General is compromised when a Minister in charge of the AG's Department or persons holding high Government office are accused of unlawful conduct. Thus in the interests of transparency in good governance the necessity of a special prosecutor has become paramount in the present context in Sri Lanka.

(The writer is an Attorney-at-Law with LLB, LLM, MPhil.(Colombo) [email protected])

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