opinion

When a chief magistrate is an attorney general

Yet again the functions of the Attorney General have been the subject of much general debate and scrutiny. The authority and powers of this office emanate from article 91 (3) of the Constitution. At this stage it is worthwhile reproducing the precise text.

"In the exercise of his powers to institute, undertake and discontinue criminal proceedings, the Attorney General shall be subject to the direction or control of no other persons or authority."

It therefore appears that the Attorney General has absolute discretion in regards to matters concerning the institution of criminal proceedings or otherwise. In fact, I dare say in such respect that the Attorney General is answerable to no one. Due to this wide discretion, it becomes indispensable for the Attorney General to use his discretion with caution. The decision he has taken recently regarding the allegations levied against the Commissioner of Police and which were the subject matter of a magisterial inquiry have led to different reactions from various sources.

The media has incorrectly reported that the Attorney General has issued a nolle prosequi regarding the said inquiry. In fact this is not the case. Such an order can only be issued after a presiding magistrate would have concluded the compilation of evidence. Such a criminal inquiry would have been conducted only after an arraignment would have taken place and the person would have been charged. It must be pointed out that after the conclusion of such an inquiry it is the duty of the presiding magistrate to examine whether there exists sufficient prima facie evidence to merit the issuing of a bill of indictment. However the magistrate's decision in such instances is never final. This due to the fact that despite the magistrate’s decision it would still depend on the Attorney General to decide whether to issue a bill of indictment or not. It is only at this stage that the Attorney General would be in a position to issue the nolle prosequi which decision would be final. Despite this, it must be pointed out that it is an extremely rare occurrence for the Attorney General to refrain from further proceedings after the Court would have decided that there subsists enough evidence to charge any individual. On account of all this, the Attorney General is sometimes referred to as the chief magistrate since the final authority regarding the issuing of the bill of indictment rests with him.

Alternatively, one may enquire whether the Attorney General should also play the role as the chief investigator. It must be stated that when it comes to investigative work our magistrates play a dual role. Besides compiling evidence as a court of criminal inquiry our magistrates are also burdened with the delicate function of conducting criminal investigations. Here the function of the investigating magistrate is to investigate reports, usually made by the executive police, regarding the commission of wrongdoing. It is the court's function to establish whether in actual fact an offence has indeed been committed and to examine whether there exists sufficient evidence to justify the arraignment or otherwise of any particular person before the courts. At this stage the inquiring magistrate is not deciding whether there is enough evidence against a particular individual warranting him being subjected to a bill of indictment. That issue would be decided at a later stage, after the arraignment, when all the evidence has been heard in open court. At this early stage all the inquiring magistrate has to decide is whether there are enough grounds to arraign. Here the test is merely that of reasonable suspicion which would in itself merit further investigation before a Court of criminal inquiry. Thus, undoubtedly the level of proof required at this instance is far less than that required at the conclusion of the inquiry after all the evidence would have been duly compiled.

Our Criminal Code dwells in depth in treating the question of the issuing of the bill of indictment. In this respect it clearly defines the functions, powers and role of the Attorney General. On the other hand the said Criminal Code is quite mute on matters regarding the role of the police authorities or the Attorney General once the conclusion of a criminal investigation are made known to them by the investigating magistrate.

It appears that the discretion of the Attorney General is to order or otherwise an arraignment after all the inquiring magistrate would have concluded in the affirmative emanates only from the generality of the powers of the said Attorney General under the Constitution.

The obvious question to all this is whether it is wise for an Attorney General to refrain from taking action against a particular individual or individuals after an investigating magistrate would have decided otherwise. After all, at this stage all that would have been recommended by the magistrate would be that the case merits further investigation before the Courts of Criminal Inquiry. It would seem far wiser for the matter to be decided after the arraignment and after all the evidence would have been compiled, and when it is time to see whether a bill of indictment should be issued or not. It must be stated that it is only at this stage that the best evaluation of the evidence can be taken. Above everything else, this has been the constant approach taken to date and it would seem unreasonable to say the least, if this practice would be reversed today especially in a highly charged and sensitive case. No wonder the Attorney General's decision has prompted such furor.