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PUBLIC RECORD OFFICE
Reference :-
PLEC.O. 882/11
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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9. There are, however, some new factors in the coming change of Government which suggest that we should consider whether a different organization will be required to meet it. In the first place the Attorney-General will be charged with responsibility for the administration of justice. This is an executive function which has hitherto been merged among others vested in tlie Governor, exercised with others through the Colonial Secretary, but not expressly assigned to any individual. Direct responsibility for this function will not be purely formal. In addition to the Supreme Court with six Judges, there are 22 District Courts, 42 Courts of Requests, 37 Police Courts. 3 Municipal Courts, 194 Village Tribunals, and 80 Village Committees. All these Courts require, of course, machinery for the discharge of their functions, juries, fiscals (or sheriffs), subordinate staff, accommodation, and equipment. These subjects neces- sarily give rise to many questions of policy, personnel and finance, and although the Attorney-General has in the past been consulted upon questions of policy arising out of some of these subjects, and in the making of appointments, it cannot be supposed that the situation will not be substantially different when all of them will be directly in his charge, and he will be answerable to the legislature for their administration.
10. While I do not doubt that everything has been done for the administration of justice which was possible under our highly centralized system of Government, I freĺ strongly that there is a need for closer contact with the Courts by an Officer charged with the duty of aiding them. I do not refer now to such work as an Inspecting Officer could carry out, though the extremely valuable work recently done for a short period by Mr. Wait greatly strengthened my opinion that closer contact was desirable. Even if, as I think will be necessary, regular inspection of subordinate Courts by a suitable officer can be arranged, that officer must report to someone who can take or promote such measures as may be necessary, and the position which the Attorney-General occupies in law in proceedings which come before the Courts often places him, not in theory only, in an embarrassing position. Nor do these difficulties concern only the lower Courts, for it will be evident that the contact which his new responsibilities will oblige him to maintain, in a great variety of matters, with the Supreme Court and with District Courts will be much handicapped by the fact that he is, by virtue of his legal position, the principal litigant in the Island I have given careful consideration to this difficulty, for I was at first inclined to think that it existed chiefly in theory by reason of the practical dissociation of the Attorney- General, which I have already described, from the work of the Courts. But I have come to the conclusion that he cannot in reality dissociate himself from the position which the law gives him, and that he certainly will not be dissociated from that position by the judges and other judicial officers who should have close and unreserved dealings with him in all their official concerns. This question is one upon which I suggest that His Excellency might properly consult the Judges of the Supreme Court, for important changes affecting them, as well as all the Courts in the Island, are proposed, and they have not yet, as far as I am aware, had an opportunity of expressing their views upon them. It might be convenient to forward for their observations a copy of this memorandum, in which I shall later outline an organization by which difficulties which I have mentioned could be removed if they are considered sufficiently serious to justify the small additional expense above that which would be entailed by the organization which, in a separate letter, I have proposed for the Law Officer's Depart- ment in the new Constitution if the Attorney-General's functions remain unchanged. I estimate this addition at a little under Rs.10,000 per annum.
11. A subject which gives rise to somewhat similar considerations to those mentioned in the two preceding paragraphs is the subject of judicial appointments. The present practice is, as you are aware, that in the case of all Courts other than the Supreme Court the Attorney-General is asked to select an individual for appoint- ment to any post which is not held by a Civil Servant.
12. The selection of individuals for appointment gives rise to personal questions which are often of considerable difficulty and demand much patience and time, but the principal ground for the criticism frequently levelled at the present system is the position of the Attorney-General as a litigant, which I have already described. It has more than once been represented by Judges of the Supreme Court, as well as by the Bar Council, that the position is open to objection in that it tends to diminish the independence of the judiciary, and may induce in the more timid, or more ambitious, among judicial officers a mistaken attitude in cases in which the Crown is engaged. In consequence of the detachment of the Attorney-General himself from actual litigation, I think that he has little difficulty in the fulfilment of his obvious duty, in considering the future of a judicial officer, to ignore the success or failure of Crown cases, as such, before him; but it is difficult to be certain that no such consideration will weigh
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with the less judicial officers, or be thought by the public to have weight with them. And there remains the fact that in inquiring as to the qualifications of individuals, who are not personally known to him (and very few are), he has often necessarily to rely upon the advice of Crown Counsel who are themselves personally involved in the conduct of cases before the officer whose future is in question. While I have no reason to suppose that I have ever received anything but impartial advice from Crown Counsel, it cannot be said that the present system offers no ground for fair criticism. Judges of the Supreme Court, Government Agents, and District Judges are sometimes also consulted, but, without a definite organization for that purpose, the consultation of Judges of the Supreme Court may give rise to difficulty in the case of a difference of opinion.
13. I would accordingly suggest that selections for judicial appointments should in future be made, not by the Attorney-General alone, but by a board on which he would be associated with one or two Judges of the Supreme Court, nominated by the Chief Justice, and with any other Government officer whose assistance might be deemed useful. Such a system of selection would differ from that proposed by the Special Commissioners for all appointments other than those filled by selection by the Secretary of State, but I think it will be agreed that the Public Services Commission, as its constitution is proposed, would not be the most suitable body to judge of the conflicting claims of candidates for judicial office, nor would it seem that the Com- missioners had such appointments in mind. Moreover, there are some judicial appoint- ments, for example, Judgeships of the Supreme Court, selections for which could hardly be submitted to the Public Services Commission with propriety. For these reasons, and with the permission of Ilis Excellency the Officer Administering the Government, I inserted provision in the draft Order in Council which would enable selection for judicial appointments to be made in the way which I suggest. I would propose that the opinion of the Judges of the Supreme Court should be obtained on this suggestion. 14. While most of the difficulties in the present system of selection for judicial appointments would be removed by institution of a hard, the Attorney-General's share in that selection would be a function which, like those which at present engage practically the whole of his attention, does not ordinarily belong to his office, and could as well, or better, be performed by someone who did not hold that office. The Special Commissioners have added another of the same character in the conduct of elections. When to these considerations are added the real difficulties which will arise in the fulfilment of his responsibility for the administration of justice, it may be asked whether the time has not come when the Attorney-General's functions should be restricted to those which properly belong to his office and a new office created to which could be transferred all those functions which the Attorney-General himself now actually performs, and the new functions which he will be required to perform under the revised constitution.
15. It would not, of course, be impossible for the Attorney-General to perform the functions which will fall to him in the new Constitution, provided that the Legal Draftsman's Office is materially strengthened, but I think that the difficulties are sufficiently serious to deserve consideration and that, as the administration of justice is directly concerned, the advice of the Judges of the Supreme Court should be sought. It will at least be clear that the situation will be very different from that which the Special Commissioners appear to have envisaged, and that it will be necessary to make provision for the exercise of functions of which the main divisions are unrelated to each other, in certain respects incompatible in something more than theory, and in their total so varied as to make difficult the adequate discharge of responsibility for them all by a single officer. Although, in my letter in which I indicated the staff which I would propose for the combined departments of the Attorney-General and Solicitor-General if no change of function is made, I suggested two additions to the staff, the real difficulties of the situation cannot be adequately met in that way. What is really required is a reallocation of responsibilities in such a way that they can be adequately discharged by the person upon whom they rest. We shall, I feel sure, obtain much better value for additional outlay if it is accompanied by a reallocation of responsibilities than if it is not.
16. To aid consideration of these questions I attach an outline of an organization which might be established if the difficulties discussed above are considered sufficiently serious to require that a change should be made. In estimating the total additional cost I do not think that the cost of the Draftsman's Office should be debited to the change, for the strengthening of that office will be necessary whether a change is made or not. I have consequently included the staff of that office in each of the two alternative organizations indicated in the attached statements. The cost of the less