Star Law analysis
Office of Attorney General: Executive or judicial?
Shah Md. Mushfiqur Rahman
There is an ongoing debate across the world revolving around the nature of Attorney General's job. Is it of executive or of judicial nature? Is it predominately executive with some judicial attributes or the vice versa? The answer is crucial because when the nature becomes more 'executive' than 'judicial', there remains a danger of politicisation of the post leading to lesser independent judiciary. In this article I shall try to identify the nature of the Attorney General's office in Bangladesh vis-à-vis its counterparts in other parts of the world. First, let us visit the history of this office.
The rudiments of Attorney General can be traced back to thirteen-century England. In many cases interest of the Crown was involved but it was unthinkable for the King to physically appear before the court to present his case. So he preferred to appoint a representative who would talk on his behalf in the courts for 20 pounds a year.
The job was pretty straightforward, well-defined, and more importantly free of any smack of politics. But gradually the office started receiving more importance, and continued to evolve to a position where its business multiplied -- both in nature and volume. Gradually all other States found their versions of Attorney General or the like.
Today the Attorney General for England and Wales probably holds the most multifaceted legal profession around the globe. He is utterly a political appointee and must be a member of either house of the Parliament. He has to represent his constituency in the parliament, account to the Parliament for his doings, defend public interest in the apex court, supervise criminal prosecution, represent the Crown in the court and advise government functionaries. No wonder Sir Francis Bacon, once Attorney General himself, termed it “the painfullest task in the realm”.
Though a political insider, the Attorney General of England is generally expected to differentiate between 'politics' and 'law' so as to enable him exercise his judgment independently. But the role of present Attorney General, Lord Goldsmith, QC has been questioned as not being judicious but politically motivated. His endorsement of the decision by the Director of the Serious Fraud Office to prematurely close an investigation into corruption in arms sales to Saudi Arabia and particularly his advice on the legality of the Iraq war raised serious debate to the point that some even argue the necessity of constitutional amendment to appoint somebody outside politics as Attorney General. Though not everybody is equally supportive of this reform proposal, they do agree on the point that the Attorney General should be reasonably independent in performing his duties to serve State interest.
Now let us have some insights into the Attorney General's office of the USA. The U.S. Attorney General is basically a member of the President's Cabinet though divested of the title 'Secretary'. As the head of the U.S. Department of Justice, he is the chief law enforcement officer of the U.S. Government in the sense that under his authority the whole prosecution service operates. He is also responsible for ensuring public safety against foreign and domestic threats and providing federal leadership in preventing and controlling crime.
It is exceedingly clear from what have been said above that the job the U.S. Attorney General dispenses tilts to executive nature. He is necessarily a political appointee and like other Secretaries of the government he has governmental agenda to pursue. Still, while appearing before the Supreme Court in exceptionally important cases, he is supposed to represent the United States, not the government. It becomes clearer when we see that he takes the post under the oath to uphold the nation's laws and the Constitution. But from a practical perspective, we can easily anticipate that for a cabinet member it is not unlikely to be more inclined to uphold government interest than State interest. This is more so in the case of present Attorney General's office under the Bush administration.
Though the current Attorney General Alberto Gonzales indicated in his testimony before the Senate during confirmation hearing that he would be the Attorney General for the entire nation, not the President, he subsequently proved himself to be just another 'Bushie'. During his tenure the Bush administration fired eight prosecutors at the beginning of the last December and another bunch of seven earlier that year. The unofficial reason for such unprecedented sacking is their lack of keenness to secure government interest sufficiently vis-à-vis state interest and to facilitate the introduction of more allegiant prosecutors.
Though not unlawful, this extraordinary power was seldom used by the predecessors of Mr. Bush so that the functional independence of the prosecution service could be maintained. The Congressional Research Service confirms that only two U.S. attorneys have been forced out in the middle of a presidential term for reasons not related to misconduct. No wonder this mass dismissal of government attorneys triggered controversy and brought to the fore an age-old question -- what is the predominant nature of the U.S. Attorney General's office: executive or judicial?
Though has been an issue of debate for long in many countries, the idea of independent Attorney General's office sees its successful implementation in Brazil. There, the Attorney General heads the federal prosecution office which happens to be an autonomous agency. Magistrates working under his authority are also independent in discharging their responsibility to investigate and prosecute offences. Unlike his counterparts in other states, Brazilian Attorney General does not have the responsibility to advise and represent the government in the court. Another official called Solicitor General looks after this job. And law enforcement is the responsibility of the Minister of Justice.
In our country, the Bangladesh Law Officers Order 1972 regulates the appointment, control and dismissal of the Attorney General. According to this Order, the President of Bangladesh has the authority to appoint the Attorney General and his deputies, and their tenure is left entirely at the mercy of the President. As a result, they are susceptible to dismissal at any time and there is no requirement of assigning any reason. In our democracy the President is virtually bound to do whatever the Prime Minister wants him to do. This way, the post of Attorney General has been, both theoretically and practically, divested of any measure of independence whatsoever.
So, we naturally don't get surprised to see the change in the role of our Attorney General's office in relation to different cases with the change of political government. Famous Masdar Hossain case can provide us with an example of Attorney General's prudence giving way to governmental convenience. At the stage of High Court Division the government didn't contest the case. Instead, the then Attorney General Mahmudul Islam expressed opinion favourable to the writ petitioners. He also informed the Court that he had written to the government expressing his view in favour of the cause of the petitioners. But after the pronouncement of judgment by the HCD, government seemed to shake off its reluctance and decided to fight the case hard. Mr. Mahmudul Islam acted accordingly giving up all his concurrence with the petitioners.
Now let us examine the position of our Attorney General in the context of the functions he disposes. In Bangladesh the Attorney General is not a political appointee nor does he performs duties of executive nature which his counterparts in other nations often do. Political aspects of law and order are generally dealt with by the Ministry of Law and Ministry of Home Affairs. He does not even have any supervisory authority over the prosecution department of the country. The Solicitor's Office under the Law and Justice Wing of the Ministry of Law, Justice and Parliamentary Affairs is responsible for appointment, payment of salaries, discipline and other ancillary issues of all government law-officers. According to the Law Ministry's official website, the Solicitor's Office is even vested with the onus of processing the appointment of the Attorney General and other Attorneys in the Supreme Court.
Our Attorney General's duty to advise the President and other government offices is not explicitly mentioned in the law on Attorney General. But to our knowledge, there have been some occasions where the Attorney General was called upon by the government for advice. And Law Ministry's official website does say that advising the government in legal issues happens to be one of his entrustments. But practically advising the different functionaries of the government is predominantly done by the Law and Justice Wing of Ministry of Law, Justice and Parliamentary Affairs. And the Wing does so fully in conformity with the Rules of Business of 1996.
Our Attorney General has no stake to play in State's law making process and unlike the Indian Attorney General he has no right to participate in the proceedings of the Parliament. All the duties our Attorney General has to perform are virtually confined to the Supreme Court premises. So, by no means his job can be labeled as executive in nature. If we tend to maintain that this crucial post in the administration of justice is of executive nature, dire consequence awaits us as it will help politics get into the process, symptoms of which are already visible. Sense of justice should be devoid of any subjective consideration in maintaining its own course. After all, what is justice and what is not is not to be told by the government.
All these lead us to the infallible conclusion that the Attorney General of Bangladesh should represent the interest of the State, not of the government. So, concrete insulation must be supplied to this office so that political invasion can do no damage to its independence which is the crux of its role as a defender of justice.
The writer is an Advocate and member of the Dhaka Bar Association.