Appoint attorney general independently

Matondo Mukulu, Guest Columnist

The recent marathon cross-examination of our attorney general (AG), though in her capacity as minister of justice, has caused right-thinking persons who are interested in the matter of how our Constitution is made to work in practice to revisit the issue of whether, in a highly polarised society such as Jamaica, we should have an attorney general who is not only selected by the Government, but sits in the Cabinet.

The obvious problem here is that the AG is the Government's chief legal adviser on all matters, and it is always hoped that when rendering legal advice, the person so doing has a high degree of objectivity, which is reduced when the appointed person owes the fact of the appointment to the person to whom she is rendering advice.

The very fact of the Government having a chief legal adviser is one which has its origins in the common-law system that obtained in England and Wales. The earliest recordings suggest that by 1243, the Crown paid (not a large sum) a Del Brok to prosecute cases on behalf of the king. The role took on a political nature in 1461 when the then attorney general was summoned by writ to attend the House of Lords to furnish the government with legal advice. It was from this time that the title 'attorney general' came into being, as prior to this, persons who held the post were referred to as 'attorney for the Crown'.

Quite curious is the fact that as in England, our attorneys general have always been members of either Houses of Parliament, though there is no requirement for the person to come from either House.

Since 1890, certainly in England and Wales, the person so appointed is prohibited from having a private practice while occupying the role, which has become more akin to that of an office holder. In India, though with clear limitations, the office holder is permitted to take on private matters, but this is something that is rarely done. I am not inclined to see the same in Jamaica. So as can be seen from that brief historical survey, we in Jamaica took a positive decision to retain the role in the form that it existed in the London.

AG's role

Section 79(1) of the Constitution provides that "there shall be appointed an attorney general who shall be the principal legal adviser to the Government". In addition to the role ascribed by the Constitution, the AG acts as the respondent in civil matters which are initiated against the Government of Jamaica. This is a very important role in the greater scheme of the governance, as the AG does have, for example, the power to initiate proceedings if she takes the view that a public nuisance is being committed, or if a statutory duty is not being complied with. So we must admit that this is a job that demands not only detailed, not superficial, knowledge of the law, but it requires an individual who has a keen sense of objectivity.

Currently and invariably, a person who becomes or is appointed to the post of AG invariably is a lawyer who has practised for some time, with there being no need for that person to have attained or achieved any level of distinction as a practitioner prior to appointment. Upon his or her appointment, the appointed person is automatically bestowed the title of Queen's Counsel (QC), which is usually reserved for persons who have distinguished themselves as advocates. Equally important is the fact that the newly appointed AG is always a member of the party forming the government of the day. There has been no exception to this practice in post-1962 Jamaica, though prior to the Manatt-Dudus issue, we have never had any reason to question the appointment and independence of the Government's chief legal adviser.

This is not the first time that we have seen within the Commonwealth a situation where the objectivity of an attorney general has come up for discussion. We all recall that during the run-up to the second Iraq war, Tony Blair's attorney general (Lord Goldsmith, a former flatmate of the PM) had initially furnished advice that the invasion would not be legal under international law, and then he changed his advice. On account of the altered advice, where the factual matrix was the same, there were those who really called very loudly for the appointment system of the AG to be reformed, as there was suspicion that Lord Goldsmith's advice was influenced by wider political party considerations.

There are countries within the Commonwealth or outside (Israel and India) where the AG is an independent person (i.e., not part of Cabinet), and I am of the view that we should, as a modern and progressive state, engage in a vigorous discussion on this issue. We have held on to most of the legal traditions of the English system, without reflecting on context and purpose, and the system of appointing the AG is one such system that needs the benefit of radically progressive surgery.

Why an independent AG?

First, as a matter of strict interpretation of our Constitution, there is nothing that says that the person has to come from within the governing party, and, of course, there is nothing that says that the AG has to be in Cabinet. The presence and attendance of the AG at Cabinet can colour (green or orange) his or her views, which can never be correct in the business of furnishing legal advice. This is not the same as saying that in providing legal advice the AG should be unmindful of wider political consequences. Political considerations should be contemplated only where they are relevant to the issue under review. The moment we start infecting the process of advising the Government, it sounds to me that we would have compromised the very essence of having a legal adviser.

The Manatt affair does show this, as despite her strenuous efforts at giving us the impression that she was above the fray, I sense that the reasonable Jamaican has formed a deep suspicion that Ms Lightbourne's ability to advise the Government was compromised by her close affiliation to the party. Of course, she was being asked to sign the order in her capacity as minister of justice, but certainly, as the AG, she would be advising the Government, despite the presence of the solicitor general. This, undoubtedly, raises the related issue of the necessity to separate the Ministry of Justice and the Office of the Attorney General, which we really must address with urgency.

Amend constitution

Having an independently selected and appointed AG is not as difficult a task as it sounds, as we can amend Section 79 of our Constitution so as to make more detailed provisions on the selection process, as currently, it is in the gift of the prime minister, and I am of the view that such an important role requires the best legal mind to be advising the Government. The PM (PNP or JLP) will select his/her friends, and certainly this cannot and should not be the sole determining feature, as we will end up with a person who is not suited for the job, which is the view that many persons have of the current occupant.

This cannot be fair for both the occupant and the country. We can create a commission whose sole job is that of appointing all the senior legal advisers within the government service, including the role of the solicitor general, as the appointment of the current solicitor general was caught up in the ugly situation of Mr Golding seeking to block the appointment of a person who many persons thought was one of the better legal minds in the Caribbean.

The Services Commission is not sufficiently independent to return appointments which are beyond objective critique, and so the new commission must have persons who have demonstrated their penchant for objectivity in their areas of expertise. This should not be restricted to Jamaica, as our partners in other Caribbean islands should be included, as we could benefit from having persons sit on some of our commissions who are not connected to the local scene.

Some have complained that the commission of enquiry will not produce anything, but I am not so inclined. Even if we do not get to the bottom of what actually transpired between Oxford Road and Vale Royal, we certainly can ensure that the risk of bias is significantly reduced, and we can, of course, guarantee that our future attorneys general are persons who will only render objective legal advice, even when it is not liked by the Government. This is imperative, as in appointing an AG we are also saying to the nation, this person will give the PM the best advice, free of any party political considerations. Can we say that about past and the present occupant?

Matondo Mukulu is a practising barrister. Email feedback to columns@gleanerjm.com and m.kmukulu@yahoo.co.uk.