Is the Attorney General a servant of the people or of government officials, including political appointees?

The dilemma emerges every time that office is engaged in some controversy, as was the case recently when the government objected to the Attorney General testifying in the House Privileges Committee on the John Dalli case.

The Constitution lays down that “in the exercise of his powers to institute, undertake and discontinue criminal proceedings and of any other powers conferred on him by any law which authorise him to exercise that power in his individual judgment, the Attorney General shall not be subject to the direction or control of any other person or authority”.

The above speaks of autonomy and independence “from any other person or authority” but one would be justified in arguing it is restricted to cases where the AG has to decide on criminal action against person/s and when prosecuting.

But the Attorney General does other work too. He advises the government on legal matters, drafts documents/agreements, instructs government officials on matters that entail the interpretation of legal issues or principles, gives advice on proposed legislation, draws up Bills and assists ministers during parliamentary debates on new laws and prepares any amendments deemed necessary.

Does the constitutional autonomy granted to the AG extend to the above roles? At which point does he stop being autonomous and suddenly become subject to the edict of a minister?

When the government refused to allow the Attorney General to answer certain questions at the House Privileges Committee, it cited professional secrecy. Does such a claim stand?

Here is an ‘attorney’ paid by the people to serve them. And, in this regard, the issue of the Attorney General’s accountability comes to the fore.

Accountability was deemed as being “key” in a report of the House of Commons’ Constitutional Affairs Committee titled ‘Constitutional role of the Attorney General’ (fifth report of session 2006-07).

It had suggested, among other things, that the office should be reformed so the public and Parliament would know on what grounds decisions are taken, including whether political instructions had been issued.

The case here is not about whether the AG was following political instructions when he made a decision. In the House Privileges Committee, the Opposition wanted to know about his role in the investigations involving Mr Dalli but the government refused to release him from professional secrecy obligations.

What the AG thought and did in the case on the tobacco directive bribery allegations is crucial in determining whether the government influenced the police over whether to arraign Mr Dalli or not.

Deputy Prime Minister Louis Grech was reported as saying that having the Attorney General testify before the committee would set a precedent and hinder future cases in which he may be required to give advice to the government because he could then expect to be summoned by Parliament.

Yet there can be nothing wrong in having the Attorney General appearing before Parliament because, like the government, he is accountable to the people represented in the House.

It need not be pointed out that the attorney-client privilege principle is meant to allow a person to speak openly to his lawyer without the fear of incriminating himself.

Should this apply to the Attorney General?

The matter is worthy of public debate, perhaps even a court pronouncement. But the Speaker of the House must give a ruling first.