Can a Magistrate convict and jail AG, a superior court Judge or a minister for expressing his opinion? – II

By M. M. Zuhair PC-February 16, 2018, 10:03 pm 

It will be obvious that the matter raises questions of fundamental importance to the right of the Attorney-General to express his opinion, to advise his client irrespective of whether his opinion was right or wrong. Several issues may be raised in this regard. Is a Magistrate, who is subject to the directions of the Attorney-General in the several instances specified in the Code of Criminal Procedure Act, empowered to review and sit in judgment over a legal opinion expressed by the Attorney-General? Is the Attorney-General or for that matter any Attorney-at-Law not entitled to express a legal opinion irrespective of any regard for anyone benefitting or gaining any advantage thereby? Does the law relating to legal advice require the Hon. Attorney-General or an Attorney-at-Law to investigate like the police, whether anyone will unlawfully benefit or get favoured or advantaged, before expressing his opinion on the facts as presented to him by his client and/or on the law as he sees it?

Is it not a violation of the fundamental right of freedom of expression and speech, freedom of thought, the freedom to engage oneself in a lawful profession, to be threatened with incarceration in jail of upto 10 years, for expressing an opinion, right or wrong, with or without the knowledge that any unlawful benefit, favour or advantage will be conferred thereby on any person? Is the Hon Attorney-General not entitled to tender a ‘conditional pardon’ to an accused or to enter a ‘nolleprosequi’ even though his decision will confer a benefit, favour or advantage to the accused in a case pending before a Judge? Can the Attorney-General be prosecuted under section 70 if his opinion had resulted in a wrongful benefit to the accused in a case where the investigating Police had suppressed a relevant fact and the AG had based his opinion on the facts before him? Can a Magistrate be prosecuted on a section 70 charge for wrongfully or unlawfully convicting an accused, which benefits the complainant, when the conviction is set aside in appeal by a higher Court?

These issues require the earnest consideration of the Attorney-General in particular, the Cabinet, the judiciary, the Bar and the public in general. It is important to protect the best interests of the public, good governance, the proper and orderly functioning of the State, Judiciary, the official and the unofficial bar. The right of the Attorney-General and Attorneys at Law to express and communicate their respective opinion to the President, the Speaker and the client with secure freedom and absolute candour is vital for the independence, integrity and proper functioning of the legal system and public life. Any challenges to the smooth and orderly functioning of a long and well established system must be viewed with great care, foresight and wisdom.

Sections 126 to 129 of the Evidence Ordinance deal with the status and confidentiality of professional communications between an Attorney-at-Law and his client and the privileged position of such communications. These salutary provisions in our law ought not to be violated, side-tracked or ignored. The rights of the legislature, the executive, the judiciary and the public as enshrined not only in the Evidence Ordinance but also in the Constitution, the laws and rulings of our superior Courts need to be jealously protected.

The role and status of the Attorney-General are extensive and exclusive. He is appointed by the President on the recommendation of the Constitutional Council. His office is not subject to the Public Service Commission. He is the chief legal advisor of the President, the Government, the Speaker, the Parliament and the public service. The Attorney-General has the right to be heard in proceedings in the Supreme Court in the exercise of its constitutional jurisdiction, fundamental rights jurisdiction, consultative jurisdiction initiated by the President and breach of the privileges of Parliament. It is the duty of the Attorney-General to examine every Bill and communicate his opinion to the President and when the Bill is before Parliament to communicate his opinion to the Speaker of Parliament.

He is the leader of the Bar and the highest legal officer of the State. It is he who makes the opening welcome speech on behalf of the Bar at ceremonial sittings of the Supreme Court and the Court of Appeal. Magistrates are subject to the directions of the Attorney-General on specified matters. The Attorney-General is entitled to take over the prosecution pending before a Magistrate. He can pardon an accomplice to a crime. He can direct a Magistrate to tender a pardon to an accomplice. He can direct a Magistrate who has discharged an accused to hold further inquiry or direct the accused to be committed to the High Court. He can quash a Magistrate’s order of committal to the High Court and direct the Magistrate to discharge the accused. Many more are his powers and duties.

The Attorney-General’s role in the administration of justice is unique and distinctive. The exercise of his powers, the performance of his duties and his role in the administration of justice are sanctioned by law, legal practices, rulings of superior Courts and accord with statutory provisions. The Attorney-General must be free to form his opinion and communicate his opinion without being threatened. He may be wrong in his views and his opinion may be rejected by a superior Court but he must be guaranteed the fullest freedom to express his opinion free of any consequential threat of prosecution. His official functions, as distinct from his personal or private ones, must not be dictated to or stifled by any bureaucrat today or the police tomorrow. The fundamental rights of the Attorney-General, acting in his official capacity in the discharge of his functions, as distinguished from an officer committing an offence in his private or personal capacity, appear to have been violated.

These proceedings initiated before a Magistrate could also be a precedent and open the flood gates to similarly invite Magistrates (or the High Court) to review the opinion expressed by the Court of Appeal, the Supreme Court or the Cabinet of Ministers in given situations. According to section 90 of the Bribery Act "public servant" includes inter alia a Minister, Provincial Minister, Member of Parliament, Member of Provincial Council, every officer or employee of the State, etc. Opinions and decisions are required to be taken regularly by the Executive headed by the President, by Ministers, by the Cabinet and by the Courts. These decisions are often taken both with and without reference to any person benefitting from such decisions.

To interpret or allege such decisions as wrongful or unlawful particularly after the holders of such office had ceased to hold the office and in this case after seven long years, could become a common occurrence that could lead to abuse of section 70 for personal or political purposes. Public servants would be unwilling to take decisions and governance could ground to a virtual halt, adversely affecting the people, if decision makers in the legislature, executive or judiciary are to be hauled up before Courts, particularly after they had ceased to hold the concerned office or upon a change of government, on allegations of expressing views or taking decisions alleging them to be wrongful.

The above proceedings initiated in the Chief Magistrate’s Court must be examined by the Attorney-General, the highest legal officer of the State in the interest of justice. We need to leave aside our personal prejudices, if any, against the concerned individuals. The principles and not the personalities involved must be given utmost consideration. The Attorney-General might consider acting under section 393(3) of the Code of Criminal Procedure Act and/or take over the prosecution and lead no evidence as had been done in many cases or even enter a ‘nolleprosequi’.

( The views expressed here are personal to the writer. Contrary views are welcome. Writer can be reached at mm_zuhair@yahoo.com).