BY Statutory Instrument 41/ 1997, the office of the Attorney General was made a public post with effect from June 15th 1997. One must recall that the General Election was held on May 23rd 1997 and the first session of Parliament was on Tuesday 17th June 1997. So one can conclude that the then Saint Lucia Labour Party used their 16-1 majority to push through a Statutory Instrument which was backdated to a date before the first session of Parliament. This is quite extraordinary indeed.!!
The apparent haste to create the public post of the Attorney General in 1997 may have created a constitutional crisis which both the Government and the Opposition must now address as a matter of urgency. The legal drafter of our constitution undoubtedly used a model similar to that used for the St Vincent and the Grenadines’ Constitution but in the ‘cut and paste’ operation, made a fundamental blunder in not defining the process for the appointment and removal of an Attorney General who is a public officer. Section 80 of the Constitution of St Vincent and the Grenadines states the following:
Section 80 of Constitution of St Vincent and the Grenadines
(1) The power to appoint a person to hold or act in the office of Attorney General at any time when it is a public post and, subject to the provisions of section 63(5) of this Constitution, the power to remove the Attorney General from office at any such time shall vest in the Governor General, acting in accordance with the advice of the Judicial and Legal Service Commission.
(2) Before tendering advice with respect to the appointment of any person to hold or act in the Office of Attorney General the Judicial and Legal Services Commission shall consult with the Prime Minister.
The process of appointment and removal is quite lucid in this Constitution. If we begin the search for how an Attorney General who is a public officer is appointed in Saint Lucia, we can begin to look at Section 91, which deals with the Appointment, etc. of Magistrates, Registrars and Legal Officers. All of these public officers are appointed and can be removed by the Judicial and Legal Services Commission. However, Section 91 (1) excludes the Attorney General from being appointed by the Judicial and Legal Services Commission.
Section 91:- …. Public office in the department of the Attorney General (other
than the public office of Attorney General)
The Judicial and Legal Services Commission has no say in the appointment of an Attorney General in a public post. Here is the beginning of the disconnect, as the Attorney General in a public Office if qualified, can act as Director of Public Prosecution as per Clause 72 (3) of the Constitution. This is the same as the St Vincent and the Grenadines Constitution; however the appointment of the Attorney General is made by the Judicial and Legal Services Commission in St Vincent and the Grenadines. The conundrum is that our DPP must be appointed by the Judicial and Legal Services Commission and thus if our Attorney General is to act in that post then there is a disconnect.
The Attorney General in a public post can only be appointed by the Public Service Commission. However, Clause 86 (3) of the Constitution places certain restrictions on the Public Service Commission in the appointment of some public offices.
Section 86:3
‘’The provisions of this section shall not apply in relation to the
following offices, that is to say—
(a) any office to which section 87 applies;
(b) the office of Chief Elections Officer;
(c) the office of Director of Public Prosecutions;
(d) the office of Director of Audit;
(e) any office to which section 91, 93 or 94 applies.’’
So we can continue of search for the appointment of an Attorney General in Section 87. In Section 87, the only other possible definition of the public office of the Attorney General can be in the post being termed a Head of Department of Government. However Section 87 (3) states that a department of Government in that section does not include the Department of the Attorney General. We cannot go there.
Where can we find the Constitutional provision for the appointment and removal of an Attorney General who is a public officer? Our present Constitution has empowered the Public Service Commission to independently appoint and remove an Attorney General, in the same manner as a Receptionist in the Government service. The Constitution is silent on the involvement of the Governor General, the Prime Minister or the Judicial and Legal Services Commission in the appointment of the public office of the Attorney General.
It therefore means that the Public Service Commission on its own judgement can appoint a young graduate from law school as our Attorney General or to the very extreme, given that the Constitution places no boundaries on qualification, a labourer in the Potholing unit can be appointed as our Attorney General. It also says that the Public Service Commission is empowered to transfer an Attorney General to another position with the full authority of the Constitution and shut down a country in the process. This certainly was not the intent of the framers of the Constitution and thus the required constitutional amendment to correction this most serious flaw is of utmost urgency.