Scrutiny of Attorney-General’s Discretionary Powers

 

Arguments

Scrutiny of Attorney-General’s Discretionary Powers

The argument advanced is that the Attorney-General’s power to grant or refuse sanction for prosecution in cases of criminal defamation is a discretionary power, but it must operate within constitutional limits. The petitioner claimed that this discretion, when exercised in a manner that infringes upon fundamental rights, particularly freedom of speech, should be open to judicial review under Article 126. The argument stressed the necessity for sufficient evidence, proper investigation, and adherence to statutory and constitutional frameworks, suggesting that unchecked prosecutorial discretion could lead to violations of constitutional protections.

Limitation on Judicial Intervention Without Prima Facie Violation

The main counterargument is that although prosecutorial discretion is broadly acknowledged, judicial intervention is warranted only in circumstances where there is a clear prima facie case of infringement of fundamental rights. In the present case, it was asserted that the petitioner failed to provide substantial grounds or convincing evidence to demonstrate that the Attorney-General’s discretion had been exercised arbitrarily or in breach of constitutional norms. Therefore, the prosecutorial decision should stand, and intervention by the judiciary is unjustified in the absence of a threshold showing of rights violation.

Judgement

Fernando J. - Discretion reviewable but threshold not met.

Fernando J. determined that the Attorney-General’s power to grant or refuse sanction for criminal defamation is discretionary but not absolute, subject to constitutional and statutory boundaries. When allegations of fundamental rights infringement arise under Article 126, this discretion becomes reviewable by the court. However, after review, Fernando J. found that the petitioner did not establish a sufficient prima facie case of rights violation to justify judicial intervention. As a result, the petition was refused, reaffirming that only demonstrated breaches warrant judicial scrutiny of prosecutorial discretion.

Wadugodapitiya J. - Agreed with principal judgment.

Wadugodapitiya J. concurred with the judgment delivered by Fernando J., indicating agreement with both the analysis regarding the reviewability of the Attorney-General’s power and the conclusion that the petitioner’s case did not demonstrate the required threshold for intervention, resulting in the petition being refused.

Bandaranayake J. - Concurred with main determination.

Bandaranayake J. agreed with the judgment and reasoning of Fernando J., supporting the finding that the Attorney-General’s discretion is reviewable in instances of possible rights violations but determining that the necessary prima facie threshold was not met in this case. The petition was accordingly refused