Two weeks ago our current Attorney General, Faris Al Rawi, and the former AG, Anand Ramlogan SC, engaged in a public dispute over Mr Ramlogan’s appearance in a case heard in the Privy Council on 20 March 2019.
The proper boundaries of conduct for attorneys general have also been a hot topic in the first quarter of this year in the United Kingdom, Canada and the United States.
In the United Kingdom, the AG is not a member of the Cabinet. This is intended to denote that the role of attorney general is to give the government legal advice. The AG is not an advocate of the government’s political agenda or a defender of the government and its members in political disputes. He acts for the government as he would for a client seeking his advice.
Consistently with this, the UK Attorney General, Geoffrey Cox QC, in the course of the Brexit confusion, gave legal advice which did not entirely support Prime Minister Theresa May’s views about the backstop arrangements for no physical boundary between Ireland and Northern Ireland following Brexit.
In Canada, where the office of Director of Public Prosecutions (DPP) is not constitutionally independent, there is great controversy about whether Canada’s former attorney general was pressured by the Prime Minister’s office to override a decision of the DPP regarding the intended prosecution of a major Canadian engineering company, SNC-Lavalin. The former attorney general, a member of the Cabinet in the Canadian system, was demoted in January 2019 and she subsequently resigned.
In the United States, controversy is raging over whether Attorney General William Barr helped President Donald Trump when he issued a summary of the ‘Mueller Report’ about possible collusion between Russia and the Trump campaign.
A redacted version of the Mueller Report is to be published later this month but Barr is said to have spun his advance statement in favour of the president and perhaps not accurately represented the contents of the report before its release.
Barr increased the controversy by claiming that US intelligence had spied on the Trump campaign. A very senior Democrat responded that Barr should keep in mind that “he is the attorney general of the United States and not the attorney general of Donald Trump.”
In our context, I have no doubt that both Al Rawi and Ramlogan—in their respective conduct of the office of attorney general—were and have been way too politically partisan and are seen by many as merely AG for their political bosses.
When Ramlogan resigned in January 2015, I wrote that “a high level of political aggression is not compatible with the office of attorney general, which is the guardian of the public interest in many matters and therefore requires a measure of detachment from the extremes of partisan party politics.”
It is not possible to be trusted as the guardian of the public interest while habitually, and sometimes crassly, pursuing a campaign against the Opposition—however righteous such a campaign may be in the eyes of the attorney general. I have written in the past about Al Rawi’s lack of scholarly detachment and he has been in the news for all the wrong reasons many times during his tenure.
The case in the Privy Council arises out of whether civil liability should attach to the late Malcolm Jones for Petrotrin’s disastrous investment in the Gas to Liquids Plant under the Patrick Manning PNM government.
Specifically, the legal issue is whether certain witness statements in arbitration proceedings be disclosed in response to a request under the Freedom of Information Act, in order to test the integrity of the PNM Cabinet decision to withdraw proceedings against Jones soon after it came into office following the 2015 election.
I have listened to the record of the hearing. The Court appears to be concerned about the political roles played in the both decisions, namely the UNC Cabinet decision to bring the proceedings and the PNM Cabinet’s decision to withdraw the proceedings.
Sadly, when the decision is given, we can expect more political aggression gravely destructive of public trust and confidence in the office of Attorney General.