Where Are the Attorneys-General?
Where Are the Attorneys-General?
Any sentient person living in a democracy and with a passing interest in the machinations of the executive branch of government will be familiar with the office of attorney-general. It may not be altogether evident what their function is, other than the holder is usually a lawyer. Some may mistakenly surmise they attend court and argue government cases. They rarely do.
They are the constitutional conscience of the executive, the first guardian of legal fidelity and a check on government excess. Broadly, they ensure government business is conducted in accordance with the law. In this sense, the attorney-general should be regarded as the most important position in government. Yet in recent years, attorneys-general from New Delhi to Canberra to Washington and beyond, have too often shirked in their duties. In some cases, they become political or have been subordinated or overruled. In India, owing to their unique law officer arrangements, the function is discharged by the Minister of Law and Justice. There, the attorney-general is not a member of Cabinet and has no independent executive powers.
The attorney-general occupies a multifaceted role across government and public affairs. In legal reform, they should play a pivotal role from the very outset of lawmaking. They often do. But even one failure can lead to lasting damage or injustice. The Citizenship (Amendment) Act in 2019, introduced by the Modi government, redefined ‘illegal migrant’ to exclude Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh or Pakistan who entered India before 31 December 2014. This allows individuals meeting these criteria to apply for citizenship, while excluding those from other religions, notably Muslims, and other countries from the same opportunity. While there was at least credible concerns regarding its constitutionality and compliance with international law instruments, the then Union Minister of Law and Justice raised no questions in this regard and instead, defended the Act. The landmark constitutional challenge filed in the Supreme Court of India in Indian Union Muslim League v. Union of India, will test the constitutionality of the Act. But, the outcome of the case is largely immaterial; what truly matters was the Minister’s silence or complicity.
Then, there is the continuing stain caused by s 124A of the Indian Penal Code which punishes any person who ‘brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government’. The law is now being used to target critics of the government, journalists, students protesting government policies among others. It took the Supreme Court in S.G. Vombatkere vs Union of India to halt ‘all pending trials, appeals and proceedings’ pending a review of s 124A. Said Amnesty International, ‘for far too long, authorities have misused the sedition law to harass, intimidate, and persecute’ so many individuals. Unverified reports say more than 800 sedition cases have been filed against 13,000 Indians since 2010. Where is the Law Minister?
In Australia, former military lawyer, David McBride, leaked classified documents that exposed, and later confirmed to be, war crimes by Australian forces in Afghanistan. He was charged with and pleaded guilty to theft and unlawful disclosure of Commonwealth documents. The attorney-general failed to discontinue the prosecution despite public interest in whistleblowing. Upholding the law sometimes means using discretion to not enforce it blindly.
In the United States, the office has become deeply politicised and rendered hopelessly impotent. From Attorney-General John Mitchell, imprisoned for his role in the Watergate scandal to Eric Holder, who described himself as the ‘President’s wing-man’ to Merrick Garland’s repeated dereliction of duty, no one is more alarming than the current holder, Pamela Bondi. She is all of proudly politicised, chronically compromised, stubbornly subordinated and institutionally impotent as she presides over many of President Trump’s actions and executive orders, most sitting on precarious constitutional footing, inviting or undergoing serious legal scrutiny.
In one of Washington’s finer feats of self contradiction, an executive order called ‘Ensuring Accountability for all Agencies’ proclaims that ‘the President and the Attorney General…shall provide authoritative interpretations of law for the executive branch.’ But the Attorney-General’s interpretations are ‘subject to the President’s supervision and control.’ Thus, the nation’s first fountainhead of justice is reduced to a ventriloquist’s puppet, the ventriloquist being a non-lawyer convicted felon who does not allow law to interfere with his agenda.
Equally concerning is the sustained attacks on the judiciary by the other branches of government, in breach of the separation of powers and inter-branch comity. Notably, President Trump has called for certain judges to be impeached. It took the US Chief Justice to issue a rare statement to remind that ‘impeachment is not an appropriate response’. Where was the attorney-general?
In 2017, the then Australian ministers, Greg Hunt, Alan Tudge and Michael Sukkar, all made contemptable comments against Victorian judges (‘ideological experiments’, judges being ‘divorced from reality’ and ‘hard-left activists judges’, respectively). They all apologised, but where was the attorney-general?
It is generally accepted that attorneys-general are also the constitutional sentinel tasked with defending the integrity of the judiciary, which conventionally remains silent.
While attorneys-general serve as the nation’s ‘first law officer’, the role is often compromised. Their duty should lie first with the law, not with politics or political enablement. There is a case for granting the office greater independence, free from cabinet collective responsibility. But equally vital is cultural reform: a shift toward viewing the attorney-general as a public legal conscience, unafraid to speak out when it matters most.
The question remains: will those in office rise to the occasion?
Nilay B. Patel is a lawyer based in Melbourne.
