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The Attorney General – a Difficult Role

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The Attorney General – A difficult role
Saturday, 26 September 2015

Patrick
Hastings who was made Attorney General in the Labour led government of
Ramsay Macdonald is said to have described his tenure of office as ‘my idea
of hell!’ It was not a position eagerly sought by him but only willy-nilly
thrust upon the labour MP.
The hastily created Labour/Liberal coalition government of 1923 had only a
handful of Kings Counsel in their ranks, out of whom Hastings being the
least objectionable. Although with the office came a knighthood and the
recognition as the head of the bar, Hastings later commented: “If I had
known what the next year was to bring forth I should most certainly have
declined.”
Once appointed, Hastings soon buckled down to his task. His day was said
to be one long rush between the House of Commons, government
departments and the law courts , many days working from 7 a.m. to 5 a.m.
the next day! It is said that the Policemen on duty at the House of
Commons complained to their superiors that the Attorney General was
working too long hours, since they too had to stay on duty with him!
The Campbell case
The Ramsay Macdonald government was short-lived. One of the major
causes for its downfall was the famous Campbell case. On 30 June 1924

Archibald Bodkin the Director of Public Prosecutions (DPP) brought to
Hastings notice an article in the Communist leaning ‘Workers Weekly’
wherein the Editor urged the members of the military to refuse to shoot at
their fellow workers in a time of war.
Based on this article, Hastings urged the prosecution of J.R. Campbell, the
Editor of the newspaper, for violating the ‘Incitement to Mutiny Act’. On 6
August Campbell’s house was raided by the Police and the Editor arrested.
But this was England. On the very day of the arrest, John Scurr, a
backbencher in Hastings’s own Labour party, asked the Home Secretary on
whose orders Campbell was arrested and for what reason. Another Labour
backbencher Jimmy Maxton rose to question the Prime Minister (and his
own party leader) Ramsay Macdonald whether he had read the article in
question, and if he is aware that it merely contains a call to the troops not
to allow themselves to be used in industrial disputes, a point of view shared
by a large number of members sitting on these benches? This line of
questioning led to an uproar in parliament, compelling the Speaker to
suspend the sittings temporarily.
The next day Attorney General Hastings had a meeting with both the
Solicitor General and Member of Parliament Jimmy Maxton who was
acquainted with the detained Editor JR Campbell. Maxton brought to their
attention that Campbell was only a temporary Editor of the paper and had
not written that article. In fact it was an article reproduced from another
journal.
Hastings then called on Ramsay Macdonald to brief him on the situation of
the case. The Prime Minister thought that the Director of Public
Prosecutions was to be blamed for the fiasco but that they should go ahead
with the case for sake of credibility. The Attorney General Hastings however
refused to pass the blame to the DPP, accepted all responsibility, but
recommended that the charges against Campbell be withdrawn. The Prime
Minister promptly concurred.
But the storm did not blow away with the withdrawal of the case. While the
public as well as the media believed that there was undue government
interference in the case, the Conservatives and the Liberals began to
accuse the government of attempting to pervert the course of justice. Prime
Minister Macdonald declared to the Parliament: “I was not consulted
regarding either the institution or the subsequent withdrawal of the case.”
But even a hint of interference in the judicial process affronts the idea of
justice. Soon the Macdonald government was facing an embarrassing
Motion of Censure in the Parliament. Although the Conservatives found it
difficult to muster the necessary numbers to carry the motion, the Liberals
also supported the idea of appointing a Select Committee to investigate the
whole matter. Before too long the government of Ramsay Macdonald fell.
Sir Patrick Hastings took the entire responsibility for the Campbell case but
defended his actions with great spirit, earning even an appearance on the

cover page of TIME magazine with the title ‘What have I done wrong?’ – a
quote from his speech in defence of his conduct.
Impressive and versatile background
Hastings had an impressive and versatile background. He did not come
from a rich or privileged family and grew up in strained conditions. At one
stage, the family even moved to the Continent in search of a better life.
While in Europe young Hastings was innocently arrested for a short period
on suspicion of involvement in the murder of a parson. Later on, he enrolled
in the British Army and saw action in Africa during the Boer War.
Hastings’ path to becoming a Barrister was extremely difficult with many a
disappointment on the way. But through patience, hard work and
determination he achieved success, then became an MP and eventually the
Attorney General. He also made a name as a writer of plays of some merit.
Whether in the case of J.R. Campbell there was an attempt at perverting the
course of justice is arguable and controversial. Hastings believed that he
exercised his judgment professionally, independently and impartially. In
countries where there is a credible rule of law every person has a right to
expect independent, impartial and professional conduct from the Attorney
General. His function is described as quasi-judicial, nearly judicial.
Although the Department of the Attorney General is administratively a
government department, in his core functions the Attorney General is not
subject to the control or directions of any other authority. Put simply, no
other authority can direct him to either charge or discharge a person. He
acts solely based on his considered judgment, exercised impartially and
independently.
Essential element of the rule of law
But herein we confront a huge conundrum. There is hardly a person who will
not agree that an independent and impartial Attorney General is an
essential element of the rule of law. But it is an idea very easy in concept,
but vastly complex and elusive in substance. Real independence of
character, impartiality of judgment, liberality of attitude needs supporting
cultures and value systems. In reality these are qualities easily professed
but rarely witnessed.
It is obvious that neither the idea of an independent judiciary nor the
concept of an office of a quasi-judicial Attorney General originated in our
history or culture. They were introductions of the colonial experience,
coming as new and alien concepts, perhaps even at odds with the
prevailing environment. This unfamiliarity with the essence and the
imperfections in the understanding lead to awkward situations, judicial
officers often equating independence of mind with being unfriendly or
reclusive, while ignoring the true nature of bias, which is ingrained.

In England it is said that the office of the Attorney General goes as far back
as the 13th Century, if not further, when a professional attorney was asked
to appear in a court on behalf of the King. From those distant, ill-defined
beginnings the office evolved; his role, the functions, the traditions, down to
the qualities ordinarily required of the holder of the office, developed and
became part and parcel of the legal system of that country.
Not all holders of the office, in the centuries in-between, represented these
values, but the systems were strong and were able to overcome and move
forward. In the quality of its legal literature, the clarity of their judgments,
lofty standards demanded of the legal profession and the overall integrity of
the system Britain remains a reference point to other countries. To this day,
the British legal system can take pride in the high esteem it is held in
universally.
What do we want of our Attorney General?
What do we want of our Attorney General? To act based on the rumble in
the marketplace? To only prosecute the rivals of those in power, blindly and
mechanically? It actually happened ,the Sarath Fonseka case was a
damnable instance where a political opponent was crushed by the full
might of the law while murderers and rapists went about freely, mocking
the very idea of justice.
The whole system was subverted and made to go after the political
opponents of the government, while turning a blind eye to anything done
by the ruling party or family. Could it be said that the police, the Attorney
General and even courts acted impartially and independently in that era?
One cannot ask an institution to act independently and then complain when
it acts in a manner contrary to your partisan expectations. On the contrary,
a person or institution which acts independently and impartially deserves
the respect of all stakeholders. That does not mean that the opinion of the
Attorney General ought to be accepted even if it is perverse.
If the opinion of the Attorney General is completely outside the realm of
rationality it is always open to refer the matter to an independent lawyer for
another opinion. It is also possible for the parliament to exercise its
supervisory powers to examine the integrity of the decision making process
in that Department by way of a Select Committee. Perhaps even a
Commission of Inquiry, if adequately empowered, can look into the actions
of the Attorney General.
But that is only in a case where it is clear that the Attorney General is
acting outside of his power, irrationally or perversely.
If otherwise, we have to realise that an independent and impartial Attorney
General is a bulwark of our freedoms. Where the powers that be cannot
have their way, perhaps it is already happening.
Posted by Thavam

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