UNDERSTANDING THE ROLE OF ATTORNEY-GENERAL

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July 11, 2016
Marlene Malahoo Forte

Recently, Attorney-General Marlene Malahoo Forte, QC, in her presentation to Parliament, made some eye-popping comments regarding proposed changes in the law. Her speech has generated much public debate about the role of our attorney general and also raises a critical question, which is, whether the attorney general herself fully understands her role and function within our constitutional democracy.

It is universally agreed that the primary role of the attorney general is to be the chief legal adviser to the Government. But it does not stop there. It is also important that the attorney general avoids conflict of interest. She must act with integrity, and in the event that she disagrees with Cabinet on any issue, her only option is to offer her resignation.

The attorney general also has a duty to observe the doctrine of 'independent aloofness', which means that on political issues she must be distant, remote or withdrawn. According to one legal scholar from Australia, the doctrine of independent aloofness means that the "attorney general should not be involved in questions of government policy or too closely involved in policy debates within government, should not engage in robust political debate, except in relation to his/her own portfolio and should be generally reticent and non-confrontational with respect to party politics". It seems then that the attorney general's recent comments in Parliament could be regarded as being in breach of this sacred principle of independent aloofness.

In recent years, the doctrine of independent aloofness has influenced the legal system in many jurisdictions. For instance, the attorney general is a public official independent of politics in India, Kenya, Singapore, Sri Lanka, Malta, Cyprus, Botswana, The Bahamas and the Seychelles. It must also be noted that since 1928, the attorney general has not been a member of the Cabinet in the United Kingdom.

In July 2011, then Prime Minister Bruce Golding appointed Ransford Braham, QC, as attorney general, but he was not a member of the Cabinet. Bruce Golding, in making the appointment said, as reported in The Gleaner, that he selected "someone from outside the political executive so as to provide separation between the Office of the Attorney General and the political arm of the government". This seems to have been a progressive move and an evident step in the right direction. Bruce Golding obviously got it right.

It is important to note that the appointment to the post of attorney general is no ordinary appointment. As is in the case of the present attorney general, the person so named in the post is appointed Queen's Counsel and stands as head of the Bar. In many jurisdictions, the appointee is someone who is qualified to be appointed a High Court judge or is a former High Court judge or a senior and well-respected senior attorney-at-law who is skilled at the craft and wise in the law. In the United States, the post of attorney general is the only Cabinet post that does not carry the title of secretary. In Jamaica, the attorney general is supported by a solicitor general, who is also a Queen's Counsel and who heads a chambers consisting of many lawyers skilled in various areas of the law.

The attorney general is a politician, but she ought not to enter the attorney general's chambers wearing a political hat. It is all about the law and what is in the best interest of the people of Jamaica. The attorney general's advice is to Cabinet and the Government, but she is the attorney general for the people of Jamaica. That must not be forgotten. So, anyone who is fortunate to benefit from this important appointment and cannot separate law from politics, which is necessary for the avoidance of a conflict of interest, should do what is decent and honourable. Resign.

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