The former Minister of Justice had presented in Parliament a comprehensive Bill aiming at amending the penal code.

... it is perhaps the right time to revisit this particular aspect of the Attorney General’s wide discretionary powers- Josè Herrera

A substantial part of the Bill endeavours at reforming drug legislation. It is being proposed for example, that persons found in possession of cannabis for their personal use could be exempted from prosecution at the discretion of the Attorney General.

All this has stirred up the debate once more regarding the wide discretionary powers granted over the years to this office. It is not contested that, as happens elsewhere, the Attorney General should be endowed with wide powers and substantial authority in order to be able to fulfil his constitutional duties. However, it is persistently being questioned whether we have gone too far in this regard.

The office of the Attorney General is enshrined in the Constitution. In fact, in article 91 we see, among other things, that, in the exercise of his responsibility as chief prosecutor, he enjoys total independence and that his office benefits from the same guarantees as that of the members of the judiciary.

This notwithstanding, it is difficult to define the exact juridical character of this important office. Undeniably, traditionally, the Attorney General, primarily due to his quasi-judicial role, was regarded as the chief magistrate. The primary function of this office today still remains that of spearheading criminal prosecutions and criminal enquiries. It is the exercise of this pivotal role that the Attorney General is, according to the Constitution, endowed with total independence.

On the other hand, the Attorney General today is also the chief adviser to the government and even answers for the state in judicial proceedings. Undoubtedly, all this makes the Attorney General appear very close to the executive branch of state. Lately, the issue was raised, even at parliamentary level, as to whether these two seemingly contradictory roles should be somewhat detached, though it is not my intention to enter into this controversy at this stage.

A particular aspect of the Attorney General’s discretion has, however, attracted much criticism from legal circles and elsewhere and has again come to the forefront of the debate as the discussion regarding drug reforms rages on.

One relatively recent amendment had unexpectedly granted the Attorney General the absolute right of deciding before which court a particular accused facing drug charges should stand trial.

The consequences of such decisions are far reaching. Persons to be tried before the Criminal Court face up to a life sentence while those adjudicated summarily before the inferior courts can only be sentenced to a maximum of 10 years’ imprisonment.

Here it is not the integrity of the incumbent that is debatable but whether it is juridically correct to allow such wide discretionary powers to a top public officer who is not a member of the judiciary and, therefore, whose decisions are not subject to judicial review.

In taking such decisions, the Attorney General is not bound to give his reasons and it is no secret that, here, the Attorney General could take into account factors that would not have resulted from the judicial process. He can definitely communicate informally with police officers and third parties extraneous to the actual case and, therefore, be fed certain information that would not otherwise result and on which the defence would not be in a position to exercise control.

In fact, certain decisions, at face value, seem inexplicable even though perhaps in truth there would have been just and equitable reasons to motivate the position being taken.

In the light of all this, therefore, it is perhaps the right time to revisit this particular aspect of the Attorney General’s wide discretionary powers.

At the very least, the law should be amended whereby the Attorney General’s decision would have to be put to judicial review.

On the other hand, there are those who go so far as to argue that this power should be abrogated altogether and this perhaps rightly so.

It is only in this manner that the due process in drug cases would become truly transparent and exonerate the Attorney General from unwarranted criticism.

Dr Herrera is shadow minister of justice.

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