The Role of the Attorney General: Balancing Legal Counsel and Independent Prosecution

The Constitution of Nepal defines the Attorney General as the chief legal advisor to the Government of Nepal. In practice, however, the role of the Attorney General is not limited to advising the government; they are also the final authority (chief prosecutor) in deciding whether or not to prosecute cases on behalf of the state.

Recently, it appears that Attorneys General have begun to use this constitutional role to serve the interests of the ruling party. The 'discretionary power' granted to the Attorney General by the Constitution is being misused.

In this context, here are the edited excerpts of a conversation with constitutional law expert Advocate Ananta Raj Luintel for Ratopati:

• How do you view the role of the Attorney General in Nepal's current constitutional framework?

Under the current system, the Attorney General is considered the chief legal advisor to the Government of Nepal. In our view, the Office of the Attorney General should be understood as the chief legal advisor to the Prime Minister or the Government of Nepal.

We have tended to view every Attorney General merely as the government's chief legal advisor rather than as an independent prosecutor. In reality, the Attorney General should belong to the state as a whole, rather than just being an independent prosecutor or a legal advisor to the government.

Sometimes, when disputes arise between constitutional bodies, such as between the Central Bank and the Government of Nepal, there is ambiguity regarding whom the Attorney General should represent. Since the Attorney General must also act as the head of prosecution, there should be a separate appointment for a Chief Prosecutor. If that were the case, the Chief Prosecutor would be separate. Since the Attorney General would be distinct, the prosecutor would be able to make decisions independently. In the current situation, the Attorney General's role should encompass the entire state, not just prosecuting cases on behalf of the government and defending it.

• Questions have been raised about the role of the Attorney General recently, particularly regarding the controversial decisions to withdraw cases involving influential individuals.

This is indeed a serious question. The Attorney General should not always be accommodating to those with political influence and distant from the cases of ordinary citizens. Currently, it appears that if a government has malicious intent or if a case is filed with political motives, and a new government takes over after the previous one falls, there is a growing trend of withdrawing cases initiated by the previous administration, or seeing them amended.

Because prosecutors are unable to act independently and are forced to withdraw cases according to the government's wishes, it appears that criminal justice is being used to suit the desires of the government or the Attorney General. It is no longer sustainable to continue with the old concept of the Attorney General's powers. Along with the jurisdiction of the Attorney General, there needs to be further clarity on which cases should be amended or modified.

• It is said that the Attorney General abuses 'discretionary power'. Why does this happen repeatedly?

The Attorney General is given the final authority to decide whether or not to prosecute a case. Just because the power is granted does not mean they should forget their dignity; decisions should not be based on political interests rather than facts and evidence.

The trend of filing cases according to the government's wishes or withdrawing them to settle political scores or protect party cadres after a change in government is an abuse of this power. It is an abuse because prosecution is being done in the government's interest. When a case is pursued based on someone else's interest or the government's needs rather than the facts, evidence, and the necessity of the case, justice is not served.

The Attorney General should also protect individuals if the government is trying to frame them. If cases are withdrawn based on the government's desire, it ceases to be an independent body. Since independent prosecution and providing legal opinions are linked to whether the state actually delivers justice, there should be no room for agendas aimed at framing someone or letting them off the hook.

The court makes one decision, but the Office of the Attorney General provides a different interpretation. When the Attorney General's opinion is sought, if it is used to serve interests by being lenient, the overall delivery of justice may die. Ultimately, the Attorney General should be a symbol of justice. They should look at whether justice is served based on facts, rather than focusing on success or failure in prosecution. Therefore, an environment must be created where they can work independently, considering the circumstances, evidence, and facts of the case.

• What kind of image will Nepal project internationally due to the role the Attorney General is playing in granting immunity to those accused of serious human rights violations and criminal cases?

Overall, I believe we must pay attention not just to human rights violations, but to every subject of prosecution. Human rights are just one aspect. Rule of Law indices are now appearing all over the world. International organizations that track records are also beginning to record these indices.

Since our country's jurisprudence appears to be declining, the international community is evaluating the overall state of human rights, the rule of law, economic rights, criminal justice, civil justice, and the overall justice received by the people. There are various indicators and actors involved, such as the Attorney General, police investigations, and the role of independent defense lawyers or the Bar. Because all of these roles are being evaluated, the government's role is also under scrutiny.

• What should be done to improve the trend of withdrawing cases of influential people whenever the Attorney General changes?

First, some improvements can be made by establishing legal provisions regarding the 'prosecutor'. If the power to withdraw cases is not left solely to the discretion of the Council of Ministers, but is instead based on the recommendation of an independent prosecutor and solid legal grounds, many of the current problems can be solved. If this power is given to the Attorney General or the Chief Prosecutor without needing a Cabinet meeting, they could be authorized to withdraw cases based on an evaluation of facts and evidence. Alternatively, if the power to withdraw cases must remain with the Cabinet, it should be stipulated that the Cabinet can only withdraw a case upon the recommendation of the Prosecutor General if new evidence emerges proving innocence. This would fulfill the objective.