Over time questions have arisen as to the role of the Attorney General as the Government's chief legal adviser on the one hand and as guardian of the public interest on the other. In a Green Paper on the Governance of Britain in 2007 the then British government set out proposals for radical constitutional reform which included a commitment to reforming the role of the Attorney General. The prime minister considered that the "role of Attorney General, which combines legal and ministerial functions, needs to change". Even as the government consulted on reform the then AG herself decided, except if the law or national security required it, not to make key prosecution decisions in individual criminal cases.
This was a somewhat far-reaching decision in England where the AG for years, unlike in T&T since the Republican Constitution, had had supervision over the Crown Prosecution Service. The voluntary relinquishing of powers by the English AG may be contrasted with the Commonwealth Caribbean where constitutional amendments were needed to ensure that ultimate control criminal prosecutions were removed from the hands of a member of the executive.
Even this was apparently insufficient and arguments continued to rage as to how far the AG could control the Office of the DPP in his responsibility for administration of legal affairs as provided in section 76(2) of the Constitution. In 2009 the Court of Appeal of T&T in The State v Seeromanie Maraj-Naraynsingh, followed the Privy Council in AG of Fiji v DPP in its ruling in respect of a similar issue. The court confirmed that in the exercise of his prosecutorial powers under the Constitution the DPP is under no obligation to obey any instruction or direction from the Attorney General. The AG is to be kept informed of matters of public interest but that was all. Certainly no AG today could claim to have the right to appear in any criminal matter far less to direct the DPP how to treat with a prosecution.
While matters appear to have been settled in respect of criminal matters in ensuring that there should be no political interference in criminal matters what of the whole range of other matters in which the State is a party, or where organs of the State are involved? What is to prevent an AG, other than his own conscience and integrity, from settling matters in favour of government supporters or other friends of the government of the day?
Section 75 of our Constitution provides that the AG is an essential member of Cabinet. So not only is he a Minister but the Constitution demands that he is a member of the inner Government — unlike in England where practice is that the AG, although a minister, is not a member of Cabinet. How can the AG who is a politician and a member of the Cabinet also presume to act as an independent legal adviser and guardian of the public interest, which convention says that he is? There must be some tension between being a party politician and a member of the government, and the giving of independent and impartial legal advice.
This was recognised by the British in the lead up to their 2007 consultation with the Government itself calling for thorough consultation and careful consideration on its Green Paper said to be designed to strengthen and enhance confidence in the administration of the justice system and the rule of law. The Government therefore sought to encourage public debate on the issues and to hear the views of all those with an interest, including parliamentarians, the judiciary, the legal profession, other parts of the justice system and the public at large.
One of other concerns expressed was that the legal advice which the government receives from the AG is not generally disclosed to Parliament or to the public, even where the advice relates to very significant decisions, for example the decision to take military action. Another was the perception that the AG might come under pressure to exercise those public interest functions in a way which reflects the political or policy interests of the Government or party to which he or she belongs, rather than wholly independently and in the public interest.
The consultation therefore revolved around asking views on a series of questions of the persons consulted with a suggested means of providing greater transparency in the interim. Not surprisingly the first question was: "Do consultees consider that the role of chief legal adviser to the Government should be separated from that of a political Government Minister? If so, who should exercise the role?"
It was suggested that accountability by the AG to Parliament could be enhanced by the creation of a select committee specifically to scrutinise the exercise of his functions by the AG. Further it was suggested that the AG should give a commitment that he/she would exercise his or her public interest functions in a way which is clearly institutionally separate from Government — i.e. that there will be no involvement by the Government in the taking of any public interest decision, except possibly where there needs to be consultation for example over the national security.
In an evolving democracy such as T&T, without the established traditions as in Britain, it seems to me that we would be better off following the practice of countries such as India where the appointed AG is not a politician. This may lead to a greater trust and public confidence that office holders of the post are acting in the public interest, in much the same way as that trust appears to currently exist in relation to the office of the DPP.
• Dana S Seetahal is a former Independent Senator