THE ATTORNEY GENERAL IS NOT TIED TO A PAST DECISION AS PRECEDENT, BUT HE IS TIED TO THE CONSTITUTIONAL DUTY OF EQUAL TREATMENT, AND THEREFORE MUST EXPLAIN ANY MATERIAL DEPARTURE FROM AN EARLIER PROSECUTORIAL STANDARD IN A COMPARABLE CASE. The Attorney General has a wide discretion whether to indict or not to indict, but that discretion cannot be exercised in a manner which violates the equality clause of the Constitution. It is not a private discretion. It is public power. It must therefore be exercised consistently, rationally, in good faith, and upon constitutionally permissible considerations. PROSECUTORIAL DISCRETION, EQUALITY BEFORE THE LAW, AND THE DUTY OF CONSISTENCY. The Attorney General is vested with a wide statutory discretion in the institution and conduct of criminal prosecutions. That discretion includes the power to decide whether a citizen should be indicted, whether a prosecution should be withheld, and whether the material placed before him is sufficient to justify the machinery of criminal justice being set in motion. But the width of the power must not be confused with absence of control. The discretion is wide. It is not absolute. It is strong. It is not arbitrary. It is entrusted to the Attorney General for the administration of justice, not for the unequal treatment of citizens. The starting point is Article 12(1) of the Constitution, which guarantees equality before the law and equal protection of the law. That guarantee binds all organs and officers of the State when they exercise public power. The Attorney General is no exception when he decides whether to prosecute or not prosecute a citizen. In Victor Ivon v. Sarath N. Silva, Attorney General and Another, [1998] 1 Sri LR 340, Fernando J. held that the Attorney General’s power to file or not file an indictment is a discretionary power, but that it is neither absolute nor unfettered. The Supreme Court further held that the exercise of that discretion is not legislative or judicial action, but executive or administrative action. It follows that, where such discretion is exercised in violation of a fundamental right, it is amenable to constitutional review. That principle is of central importance. Once the decision to indict is treated as executive or administrative action, it cannot escape the discipline of Article 12. Equality before the law is not confined to courts deciding cases. It also applies to the executive decision whether to place one citizen in the dock and to spare another. The Attorney General therefore cannot lawfully discriminate between citizens in the exercise of prosecutorial discretion. If two persons are similarly situated in all material respects, they must be treated according to the same legal standard unless there is a rational, relevant and lawful basis for different treatment. The law does not require mechanical uniformity. No two criminal files are identical. The Attorney General may distinguish one case from another on relevant grounds. Such grounds may include the strength of the evidence, the availability of independent corroboration, the credibility of witnesses, the existence of admissions, the nature of the public interest, the gravity of the alleged offence, delay, prejudice, the conduct of the complainant, or the presence of material connecting the suspect to the offence. But the distinction must be real. It must be rational. It must arise from the evidence. It cannot be invented after the event. It cannot be based on favour, hostility, institutional embarrassment, personal association, political influence, or convenience. In Victor Ivon, the Supreme Court gave illustrations showing that prosecutorial discretion becomes unconstitutional where it is exercised selectively. Fernando J. considered the example of rival political actors defaming each other during an election campaign. If the Attorney General consistently refused sanction in such cases but made exceptions only against persons belonging to one political party, the exercise of discretion would raise a constitutional issue. The Court further observed that if complaints against one newspaper were regularly allowed even on tenuous evidence, while complaints by others were refused despite ample evidence, Article 12(1) would be engaged. That reasoning is directly applicable to prosecutorial inconsistency. The vice is not merely that one man is prosecuted and another is not. The vice is that the State may have applied one evidentiary standard to one citizen and a different evidentiary standard to another, without lawful justification. The Attorney General is not bound by his earlier decision in the strict sense of judicial precedent. His previous decision not to indict in one case does not operate as res judicata. It does not create an estoppel preventing him from indicting in every later case involving broadly similar facts. Prosecutorial decisions are fact-sensitive. A later case may contain additional evidence, clearer intention, stronger surrounding circumstances, better identification, more reliable witnesses, or a stronger public interest. But while the Attorney General is not bound as a court is bound by precedent, he is bound by the Constitution to act consistently in principle. He cannot, without rational explanation, adopt one legal standard in one case and abandon it in another. Thus, where the Attorney General has previously taken the position that an EQD report alone is insufficient to justify prosecution because it does not identify the forger, does not prove procurement, and does not establish knowing use, that position becomes a relevant standard of prosecutorial judgment. It does not bind the Attorney General forever as an inflexible rule. But it does require explanation if, in a subsequent case, a citizen is indicted on a weaker EQD foundation and without independent connecting evidence. The constitutional question is not whether the Attorney General may change his mind. He may. Public authorities may correct past approaches. They may develop prosecutorial policy. They may act differently when the facts are materially different. The constitutional question is whether the different treatment is justified by relevant differences. If in the earlier case there was an EQD report, a direct benefit to the suspect, and yet the Attorney General refused prosecution for want of connecting evidence, but in the later case there is only a disputed EQD report, no benefit to the accused, no independent criminal investigation, and no material showing knowledge or participation, then the later indictment may be attacked as unequal, arbitrary and irrational. In such a case, the argument is not that the Attorney General must prosecute every person or prosecute none. The argument is that the Attorney General must apply the same constitutional standard to all. If the State says in one case that “EQD plus benefit is insufficient without connecting evidence,” it cannot fairly say in another case that “EQD without benefit is sufficient,” unless some other material distinction exists. This is where Article 12 becomes powerful. Equality before the law is not merely a prohibition against hostile discrimination. It is also a guarantee against arbitrary State action. Where public power affects liberty, reputation and professional standing, equality requires even-handedness in the method of decision-making. The prosecutor is not a private litigant. He does not represent a complainant in the ordinary sense. He represents the public interest in the fair administration of criminal justice. The duty is not to secure a conviction at all costs, but to assist justice. This principle is reflected in the well-known observation in Attorney General v. Sivapragasam, later referred to in subsequent material, that a prosecutor is a minister of justice and should be objective in attitude. The duty of fairness also extends to investigation. In Victor Ivon, the Supreme Court stated that a citizen is entitled to a proper investigation, one which is fair, competent, timely and appropriate, whether the complaint is made by him or against him. The absence of a proper investigation may deprive the citizen of the protection of the criminal law. That passage has particular significance where the indictment is said to have been founded on incomplete material. If relevant exculpatory facts were not investigated, if contradictory versions were not tested, if telephone evidence was ignored, if a civil EQD report was treated as sufficient without independent criminal inquiry, and if the Attorney General was not placed in possession of a balanced record, the decision may cease to be a true exercise of prosecutorial discretion. It may become an arbitrary administrative act. The Attorney General’s discretion is therefore controlled by the following constitutional limits: First, the decision must be based on objective material and not mere suspicion. Second, the decision must be made upon a fair and reasonably complete investigative record. Third, relevant exculpatory material must not be ignored. Fourth, irrelevant or constitutionally impermissible considerations must not influence the decision. Fifth, similarly situated persons must not be treated differently without a rational and lawful basis. Sixth, if the Attorney General departs from a standard previously applied in a comparable case, the departure must be explainable by reference to material differences in fact, evidence or public interest. Seventh, the decision must not reduce the criminal process into an instrument of harassment, pressure or unequal treatment. In Victor Ivon, Fernando J. gave a clear example of the danger. If a decision to prosecute is taken where the evidence is plainly insufficient, where there has been no proper investigation, or where the decision is based on impermissible factors, the discretion is subject to obvious limits. The same reasoning applies with greater force where the comparison is between two EQD-based forgery cases. An EQD report may show that a signature is not genuine. But by itself it may not show who forged it, who procured the forgery, who knew of the forgery, or who dishonestly used the document. If that was the Attorney General’s own reasoning in one case, then equal protection requires that the same reasoning be applied in another case unless there is additional material justifying a different conclusion. THE ATTORNEY GENERAL CANNOT BE COMPELLED TO REPEAT AN ERROR. The Attorney General cannot repeat an error. If the earlier refusal to prosecute was wrong, the Attorney General may depart from it in a later case. But he cannot silently rely on one standard to protect one citizen and another standard to prosecute another citizen. The Constitution does not allow hidden double standards. The burden on the petitioner in such a challenge is not light. The petitioner must show more than a mere difference of outcome. It is not enough to say, “Another person was not prosecuted, but I was.” The petitioner must show that the two cases were materially comparable, that the earlier decision disclosed a prosecutorial standard, that the later decision departed from that standard, and that the departure was not supported by relevant differences. Once that is shown, the burden of explanation shifts in a practical sense. The Attorney General need not disclose every confidential aspect of prosecutorial deliberation. But where unequal treatment is credibly alleged, the State must be able to satisfy the Court that the difference was based on lawful and rational grounds. THE COURT WILL NOT CONDUCT A TRIAL BEFORE TRIAL. It will not decide whether a citizen is guilty or innocence. It will not weigh every item of evidence as a trial judge. But it can examine the antecedent process leading to the indictment. That distinction was recognised in Victor Ivon, where the Supreme Court observed that although the High Court tries the indictment, it has no authority to review the antecedent executive process by which the indictment was issued in violation of fundamental rights. Therefore, the proper constitutional formulation is this: The Attorney General is not bound by his previous prosecutorial decision as a rigid precedent. But he is bound by Article 12 to act consistently, rationally and without discrimination. Where he has adopted a standard in one case, especially on the sufficiency of evidence, he must not depart from that standard in another materially similar case without a lawful, rational and evidence-based reason. If he does so, the decision may be challenged as arbitrary, discriminatory and contrary to the equal protection of the law. EQD-BASED FORGERY PROSECUTION. If, in one case, the Attorney General refused to indict a person who allegedly benefited from a disputed document because the EQD report did not provide connecting evidence of authorship, procurement or knowledge, then the Attorney General cannot, consistently with Article 12, indict another person who did not benefit from the document, on an EQD report of weaker value, without independent connecting evidence, unless there are other material facts which rationally justify the distinction. In the absence of such distinguishing material, the indictment may be said to suffer from three defects. It is irrational because the evidentiary standard applied is inconsistent. It is unfair because relevant exculpatory material has not been equally considered. It is discriminatory because one citizen has received the benefit of caution while another has been subjected to the burden of prosecution on a lesser footing. PAST DECISIONS TIED TO THE CONSTITUTIONAL DUTY OF EQUAL TREATMENT. The Attorney General may be powerful. But under the Constitution he is not above equality. His decision to indict, like every other executive act, must stand before Article 12. If it cannot stand there, it cannot stand at all. The core proposition can be put in one sentence: the Attorney General is not tied to a past decision as precedent, but he is tied to the constitutional duty of equal treatment and therefore must explain any material departure from an earlier prosecutorial standard in a comparable case.

 

Attorney General is tied to the constitutional duty of equal treatment, and therefore must explain any material departure from an earlier prosecutorial standard in a comparable case. 

The Attorney General has a wide discretion whether to indict or not to indict, but that discretion cannot be exercised in a manner which violates the equality clause of the Constitution. It is not a private discretion. It is public power. It must therefore be exercised consistently, rationally, in good faith, and upon constitutionally permissible considerations.

Prosecutorial Discretion, Equality Before the Law, and the Duty of Consistency.

The Attorney General is vested with a wide statutory discretion in the institution and conduct of criminal prosecutions. That discretion includes the power to decide whether a citizen should be indicted, whether a prosecution should be withheld, and whether the material placed before him is sufficient to justify the machinery of criminal justice being set in motion.

But the width of the power must not be confused with absence of control. The discretion is wide. It is not absolute. It is strong. It is not arbitrary. It is entrusted to the Attorney General for the administration of justice, not for the unequal treatment of citizens.

The starting point is  Article 12(1) of the Constitution, which guarantees equality before the law and equal protection of the law. That guarantee binds all organs and officers of the State when they exercise public power. The Attorney General is no exception when he decides whether to prosecute or not prosecute a citizen.

In Victor Ivon v. Sarath N. Silva, Attorney General and Another, [1998] 1 Sri LR 340, Fernando J. held that the Attorney General’s power to file or not file an indictment is a discretionary power, but that it is neither absolute nor unfettered. The Supreme Court further held that the exercise of that discretion is not legislative or judicial action, but executive or administrative action. It follows that, where such discretion is exercised in violation of a fundamental right, it is amenable to constitutional review.

That principle is of central importance. Once the decision to indict is treated as executive or administrative action, it cannot escape the discipline of Article 12. Equality before the law is not confined to courts deciding cases. It also applies to the executive decision whether to place one citizen in the dock and to spare another.

The Attorney General therefore cannot lawfully discriminate between citizens in the exercise of prosecutorial discretion. If two persons are similarly situated in all material respects, they must be treated according to the same legal standard unless there is a rational, relevant and lawful basis for different treatment.

The law does not require mechanical uniformity. No two criminal files are identical. The Attorney General may distinguish one case from another on relevant grounds. Such grounds may include the strength of the evidence, the availability of independent corroboration, the credibility of witnesses, the existence of admissions, the nature of the public interest, the gravity of the alleged offence, delay, prejudice, the conduct of the complainant, or the presence of material connecting the suspect to the offence.

But the distinction must be real. It must be rational. It must arise from the evidence. It cannot be invented after the event. It cannot be based on favour, hostility, institutional embarrassment, personal association, political influence, or convenience.

In Victor Ivon, the Supreme Court gave illustrations showing that prosecutorial discretion becomes unconstitutional where it is exercised selectively. Fernando J. considered the example of rival political actors defaming each other during an election campaign. If the Attorney General consistently refused sanction in such cases but made exceptions only against persons belonging to one political party, the exercise of discretion would raise a constitutional issue. The Court further observed that if complaints against one newspaper were regularly allowed even on tenuous evidence, while complaints by others were refused despite ample evidence, Article 12(1) would be engaged.

That reasoning is directly applicable to prosecutorial inconsistency. The vice is not merely that one man is prosecuted and another is not. The vice is that the State may have applied one evidentiary standard to one citizen and a different evidentiary standard to another, without lawful justification.

The Attorney General is not bound by his earlier decision in the strict sense of judicial precedent. His previous decision not to indict in one case does not operate as res judicata. It does not create an estoppel preventing him from indicting in every later case involving broadly similar facts. Prosecutorial decisions are fact-sensitive. A later case may contain additional evidence, clearer intention, stronger surrounding circumstances, better identification, more reliable witnesses, or a stronger public interest.

But while the Attorney General is not bound as a court is bound by precedent, he is bound by the Constitution to act consistently in principle. He cannot, without rational explanation, adopt one legal standard in one case and abandon it in another.

Thus, where the Attorney General has previously taken the position that an EQD report alone is insufficient to justify prosecution because it does not identify the forger, does not prove procurement, and does not establish knowing use, that position becomes a relevant standard of prosecutorial judgment. It does not bind the Attorney General forever as an inflexible rule. But it does require explanation if, in a subsequent case, a citizen is indicted on a weaker EQD foundation and without independent connecting evidence.

The constitutional question is not whether the Attorney General may change his mind. He may. Public authorities may correct past approaches. They may develop prosecutorial policy. They may act differently when the facts are materially different.

The constitutional question is whether the different treatment is justified by relevant differences.

If in the earlier case there was an EQD report, a direct benefit to the suspect, and yet the Attorney General refused prosecution for want of connecting evidence, but in the later case there is only a disputed EQD report, no benefit to the accused, no independent criminal investigation, and no material showing knowledge or participation, then the later indictment may be attacked as unequal, arbitrary and irrational.

In such a case, the argument is not that the Attorney General must prosecute every person or prosecute none. The argument is that the Attorney General must apply the same constitutional standard to all. If the State says in one case that “EQD plus benefit is insufficient without connecting evidence,” it cannot fairly say in another case that “EQD without benefit is sufficient,” unless some other material distinction exists.

This is where Article 12 becomes powerful. Equality before the law is not merely a prohibition against hostile discrimination. It is also a guarantee against arbitrary State action. Where public power affects liberty, reputation and professional standing, equality requires even-handedness in the method of decision-making.

The prosecutor is not a private litigant. He does not represent a complainant in the ordinary sense. He represents the public interest in the fair administration of criminal justice. The duty is not to secure a conviction at all costs, but to assist justice. This principle is reflected in the well-known observation in Attorney General v. Sivapragasam, later referred to in subsequent material, that a prosecutor is a minister of justice and should be objective in attitude.

The duty of fairness also extends to investigation. In Victor Ivon, the Supreme Court stated that a citizen is entitled to a proper investigation, one which is fair, competent, timely and appropriate, whether the complaint is made by him or against him. The absence of a proper investigation may deprive the citizen of the protection of the criminal law.

That passage has particular significance where the indictment is said to have been founded on incomplete material. If relevant exculpatory facts were not investigated, if contradictory versions were not tested, if telephone evidence was ignored, if a civil EQD report was treated as sufficient without independent criminal inquiry, and if the Attorney General was not placed in possession of a balanced record, the decision may cease to be a true exercise of prosecutorial discretion. It may become an arbitrary administrative act.

The Attorney General’s discretion is therefore controlled by the following constitutional limits:

First, the decision must be based on objective material and not mere suspicion.

Second, the decision must be made upon a fair and reasonably complete investigative record.

Third, relevant exculpatory material must not be ignored.

Fourth, irrelevant or constitutionally impermissible considerations must not influence the decision.

Fifth, similarly situated persons must not be treated differently without a rational and lawful basis.

Sixth, if the Attorney General departs from a standard previously applied in a comparable case, the departure must be explainable by reference to material differences in fact, evidence or public interest.

Seventh, the decision must not reduce the criminal process into an instrument of harassment, pressure or unequal treatment.

In Victor Ivon, Fernando J. gave a clear example of the danger. If a decision to prosecute is taken where the evidence is plainly insufficient, where there has been no proper investigation, or where the decision is based on impermissible factors, the discretion is subject to obvious limits.

The same reasoning applies with greater force where the comparison is between two EQD-based forgery cases. An EQD report may show that a signature is not genuine. But by itself it may not show who forged it, who procured the forgery, who knew of the forgery, or who dishonestly used the document. If that was the Attorney General’s own reasoning in one case, then equal protection requires that the same reasoning be applied in another case unless there is additional material justifying a different conclusion.

The Attorney General cannot be compelled to repeat an error.

 

The Attorney General cannot repeat an error. If the earlier refusal to prosecute was wrong, the Attorney General may depart from it in a later case. But he cannot silently rely on one standard to protect one citizen and another standard to prosecute another citizen. The Constitution does not allow hidden double standards..

The burden on the petitioner in such a challenge is not light. The petitioner must show more than a mere difference of outcome. It is not enough to say, “Another person was not prosecuted, but I was.” The petitioner must show that the two cases were materially comparable, that the earlier decision disclosed a prosecutorial standard, that the later decision departed from that standard, and that the departure was not supported by relevant differences.

Once that is shown, the burden of explanation shifts in a practical sense. The Attorney General need not disclose every confidential aspect of prosecutorial deliberation. But where unequal treatment is credibly alleged, the State must be able to satisfy the Court that the difference was based on lawful and rational grounds.

The Court will not conduct a trial before trial.

It will not decide whether a citizen is guilty or innocence. It will not weigh every item of evidence as a trial judge. But it can examine the antecedent process leading to the indictment. That distinction was recognised in Victor Ivon, where the Supreme Court observed that although the High Court tries the indictment, it has no authority to review the antecedent executive process by which the indictment was issued in violation of fundamental rights.

Therefore, the proper constitutional formulation is this:

The Attorney General is not bound by his previous prosecutorial decision as a rigid precedent. But he is bound by Article 12 to act consistently, rationally and without discrimination. Where he has adopted a standard in one case, especially on the sufficiency of evidence, he must not depart from that standard in another materially similar case without a lawful, rational and evidence-based reason. If he does so, the decision may be challenged as arbitrary, discriminatory and contrary to the equal protection of the law.

EQD-based forgery prosecution.

If, in one case, the Attorney General refused to indict a person who allegedly benefited from a disputed document because the EQD report did not provide connecting evidence of authorship, procurement or knowledge, then the Attorney General cannot, consistently with Article 12, indict another person who did not benefit from the document, on an EQD report of weaker value, without independent connecting evidence, unless there are other material facts which rationally justify the distinction.

In the absence of such distinguishing material, the indictment may be said to suffer from three defects.

It is irrational because the evidentiary standard applied is inconsistent.

It is unfair because relevant exculpatory material has not been equally considered.

It is discriminatory because one citizen has received the benefit of caution while another has been subjected to the burden of prosecution on a lesser footing.

past decisionS tied to the constitutional duty of equal treatment.

The Attorney General may be powerful. But under the Constitution he is not above equality. His decision to indict, like every other executive act, must stand before Article 12. If it cannot stand there, it cannot stand at all.

The core proposition can be put in one sentence: the Attorney General is not tied to a past decision as precedent, but he is tied to the constitutional duty of equal treatment and therefore must explain any material departure from an earlier prosecutorial standard in a comparable case.