Delegation of power to public prosecutors : a step forward in Professional immunities and privileges « प्रशासन
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Delegation of power to public prosecutors : a step forward in Professional immunities and privileges


प्रकाशित मिति : 29 May, 2021 1:46 pm

According to the Constitution of Nepal,The Attorney General is the chief legal advisor to the Government of Nepal. It is the duty of Attorney General to give opinions and advice on constitutional and legal matters to the government of Nepal and to other such authorities as the GON may specify. The attorney General or officer subordinate to him/her represent the government of Nepal in Suits in which the right, interests or concerns of the GON are involved.

The Attorney General or government attorneys subordinate to him or her shall represent the Government of Nepal in law suits where in the rights interests or concerns of the Government of Nepal are involved. Except as provided otherwise in this Constitution, the Attorney General shall have the right to make a final decision as to whether to institute any case on be half of the Government of Nepal in any court, judicial body or authority. Opinion of the Attorney General must be obtained for withdrawing a case filed on behalf of the Government of Nepal. The Attorney General may, upon invitation by the Federal Parliament or any of its committees, to appear and express his or her opinion on any legal question in such a meeting. In the course of discharging the duties of his or her office, the Attorney General shall have the right to appear in any Court, office and authority of Nepal.

The Attorney General shall, in the course of performing his or her duties, have the power to carry out the following acts, in addition to the above mention function. to defend, on behalf of the Government of Nepal, any lawsuit in which the Government of Nepal is a plaintiff or a defendant, to monitor, or cause to be monitored, whether any interpretation given to a law or any legal principle laid down by the Supreme Court in the course of hearing of lawsuits has been implemented, if a complaint is made alleging that any person held in custody has not been treated humanely subject to this Constitution or such person has not been allowed to meet his or her relative or through his or her legal practitioner or if information of such matter is received, to inquire there into and give necessary directive to the concerned authority to prevent such act. The Attorney General may so delegate his or her functions, duties and powers under to his or her subordinate Government Attorneys as to be exercised and complied with subject to the specified conditions. In addition to the functions, duties and powers mentioned in above, other functions, duties and powers of the Attorney General shall be pursuant to the Constitution and the Federal law.

Since the Attorney General is a political appointed person at the will of The head of the Executive ,there is also a separate permanent bureaucraticstructured set up as office of the Attorney General in the centre, high attorney offices in 18 different places as specified jurisdictions and district attorney offices in all 77 districts. Theofficials under judicial services ,government attorney group as DuptyAG, JointAttorney, Dupty Attorney and Assistant Attorney are collectively working under the delegated power from Attorney General. The main objectives of this write up is need and importance of delegation of power to the prosecutors so that they can carry out their assigned task independently and more efficiently.

The Nepalese constitution provides the Attorney General the right to make a final decision as to whether to institute any case on behalf of the Government of Nepal in any court, judicial body or authority. If we look this provision minutely, it is the sole right of AG and AG as handpicked by the Prime minister of the State, a million dollar Question arises that can he work independently or only to please him and cannot go beyond the will of PM.

The Attorney General is the legal advisor of the prime minister and the leader of public prosecutor in our context. Some countries have the provision where Attorney General and Prosecutor officer will be different individual. In fact, in our case also separation is need of the hour. The Attorney General should help the Prime ministers and government in legal issues and the prosecution leader should be the senior most secretary of judicial service of Government Attorney group and he/she should delegate the power to his subordinates as specified so there can be no influence from executive since the secretary is the selected person through competitive Public service Examination and has long experience in prosecution and related works .

In our context, the AG has all the power of prosecution and other government attorney should work within the limitation of delegated power by AG. The power inherent to AG has been delegated to subordinates time and again to ease the prosecution and related work. This has helped to make it more simplified ,accessible and timely execution . Recently the AG has delegated some more power to the subordinate which has not only made prosecutor more responsible but also became supplement in delivery of justice promptly.

The practice of delegating power inherent to Attorney General to the subordinates is not the new phenomenon as it is almost impossible to AG to give attention in all nook and corner. The AG must entrust more responsibilities to subordinates working under and he/she must concentrate in making policies to strengthen the office of the attorney general and create favorable environment to the prosecutor officers and materialized the prosecution based on sufficient evidences. He/she should be able to advice and convince the executive and government In legal issues rather than please them by any means.

It seems that the Attorney General work under pressure and in favour of the Government even if there seems sheer violation of law and legal procedures. Minimizing the external influences and working independently help to deliver the justice to justice seeker.The Public prosecutors must carry out the duties and responsibilities under delegated power as specified conditions so that stakeholder can feel that justice is done as though the decision is not in his/her favour. Instituting a case in behalf of the government in any court is a herculean task that needs lot of hardwork, wisdom, passion and adequate knowledge of substantive and procedural law. Presenting the charge sheet against any body without sufficient evidence become futile .

Last but not the least, the delegation of more power to the permanent bureaucratic structured and public prosecutors is a positive step and it definitely help to achieve the desired success in the government cases and increasing confidence, professionalism and motivation hence reducing the work load to the Attorney General.

(MrMarasini holds master degree in English literature and public Administration with degree in law. A government lawyer, currently works in office of the high attorney ,Butwal.Above are the views expressed individually and does not represent the organisatiion and position.)

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