A Supreme Court writ ordering the Attorney General’s (AG) Office to represent all state offices, including independent institutions, has caused concern, with lawyers saying the writ contravenes the constitution and compromises the independence of independent institutions.
Chief Justice Abdulla Saeed, in a public letter on September 14, said: “The Attorney General shall represent the state in proceedings where offices and institutions of the state have submitted a claim, and where charges have been filed against them.”
The writ appears to contravene provisions in the Civil Service Commission Act, the Human Rights Commission Act, the Judicial Services Commission Act, the Elections Commission Act, the Anti-Corruption Commission Act and the National Integrity Commission Act, which state that these commissions are “separate legal entities” with the authority “to sue and suit against and to make undertakings in its own capacity,” according to critics.
Ahmed Usham, the deputy attorney general, said his office is now discussing how it may implement the Supreme Court’s order.
“On one hand we have to follow the Supreme Court’s order and on the other we also have to consider the independence of independent state institutions,” he said.
He declined to comment further.
In the writ, the Supreme Court referred to Article 133 (a) of the Constitution, which states: “The state shall be represented in all courts by the Attorney General or by a person delegated by him, except for those matters deemed to be the responsibility of the Prosecutor General in this Constitution.”
The PG lifts criminal charges on behalf of the state.
A lawyer, who wished to remain anonymous for fear of reprisal, said that Article 133 (a) refers to “court cases in which the state and the government as a whole is the recipient of a legal claim.”
It does not infringe ob the authority granted to independent institutions to file charges and be represented in courts of law by lawyers of their own choice, he said.
The writ also contravenes precedents set by the Supreme Court itself in 2010, he said. In a case relating to the arrest of President Abdulla Yameen, who was an MP at the time, the apex court insisted that the Attorney General could not represent the police force.
Another lawyer, who was reluctant to give his name, said the writ contravenes the constitution’s spirit to allow independent institutions to operate with full discretion and authority, without government influence.
“For example, how will the Human Rights Commission operate independently and scrutinize potentially questionable and illegal actions by the government when it has to rely on a sitting member of the cabinet to represent them in court?” the lawyer said.
The government could exert undue influence over watchdog bodies if they have to rely on the AG office, he added.
The Supreme Court has been criticized previously for imposing legally binding guidelines on the human rights watchdog and the Elections Commission over charges of contempt of court.
The opposition has accused the apex court of usurping the legislature’s role by imposing laws.