Selected Commonwealth Jurisdictions with Fully Separated Roles of the Attorney General and Public Prosecutor
In the following Commonwealth jurisdictions, the roles of the Attorney General and Public Prosecutor (or its equivalent) are fully separated into different offices.
Selected Commonwealth jurisdictions where the roles are fused instead, are considered in a previous article.[1]
A. BANGLADESH
The Government appoints Public Prosecutors who are in charge of criminal prosecution
Section 492(1) of the Code of Criminal Procedure, 1898 provides:
“The Government may appoint, generally, or in any case, or for any specified class of cases, in any local area, one or more officers to be called Public Prosecutors.”[2]
Public Prosecutors can only withdraw prosecutions with the consent of the Court
Section 494 of the Code of Criminal Procedure, 1898 states:
“Any Public Prosecutor may, with the consent of the Court, before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[3] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the legal advisor to the Government
The website of the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of Bangladesh mentions the following:
The President appoints the Attorney General
Article 64 of the Constitution of the People’s Republic of Bangladesh specifies that:
“The President shall appoint a person who is qualified to be appointed as a Judge of the Supreme Court to be Attorney-General for Bangladesh.”[4]
B. INDIA
The Public Prosecutor is in charge of criminal prosecutions
Section 24(1) of the Code of Criminal Procedure 1973 provides:
“For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.”[5] (Emphasis mine)
The Central/State Government(s), after consultation with the High Court, appoint the Public Prosecutor
See Section 24(1) of the Code of Criminal Procedure 1973 above.
This acts as a check and balance mechanism.
Public Prosecutors can only withdraw prosecutions with the consent of the Court
Section 321 of the Code of Criminal Procedure 1973 states:
“The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried …”[6] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the legal advisor to the Government
Article 76(2) of the Constitution of India 1950 mentions the following:
“It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.”[7]
The President appoints the Attorney General
Article 76(1) of the Constitution of India 1950 specifies that:
“The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.”[8]
C. JAMAICA
The Director of Public Prosecutions is in charge of criminal prosecutions
Section 94(3) of the Jamaican (Constitution) Order in Council 1962 provides:
“The Director of Public Prosecutions shall have power in any case in which he considers it desirable so to do—
a. to institute and undertake criminal proceedings against any person before any court other than a court-martial in respect of any offence against the law of Jamaica;
b. to take over and continue any such criminal proceedings that may have been instituted by any other person or authority, and
c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by himself or any other person or authority.”[9] (Emphasis mine)
The Governor General appoints the Director of Public Prosecutions
The website of the Office of the Director of Public Prosecutions of Jamaica states:[10]
The Attorney General is the principal legal advisor to the Government
Section 79(1) of the Jamaican (Constitution) Order in Council 1962 mentions the following:
“There shall be an Attorney-General who shall be the principal legal adviser to the Government of Jamaica”[11]
The Governor General, on the advice of the Prime Minister, appoints the Attorney General
Section 79(2) of the Jamaican (Constitution) Order in Council 1962 specifies that:
“Power to appoint a person to hold or act in the office of Attorney-General and to remove from that office a person holding or acting in it shall, subject to subsection (4) of this section, be exercised by the Governor-General acting in accordance with the advice of the Prime Minister”[12]
D. KENYA
The Director of Public Prosecutions is in charge of criminal prosecutions
Article 157(6) of the Constitution of Kenya 2010 provides:
“The Director of Public Prosecutions shall exercise State powers of prosecution and may—
(a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed;
(b) take over and continue any criminal proceedings commenced in any court (other than a court martial) that have been instituted or undertaken by another person or authority, with the permission of the person or authority; and
(c) subject to clauses (7) and (8), discontinue at any stage before judgment is delivered any criminal proceedings instituted by the Director of Public Prosecutions or taken over by the Director of Public Prosecutions under paragraph (b).”[13] (Emphasis mine)
The President, on the nomination of the President and the approval of the National Assembly, appoints the Director of Public Prosecution
Article 157(2) of the Constitution of Kenya 2010 states:
“The Director of Public Prosecutions shall be nominated and, with the approval of the National Assembly, appointed by the President”[14] (Emphasis mine)
This acts as a check and balance mechanism.
The Director of Public Prosecutions can only withdraw prosecutions with the permission of the Court
Article 157(8) of the Constitution of Kenya 2010 mentions the following:
“The Director of Public Prosecutions may not discontinue a prosecution without the permission of the court.”[15] (Emphasis mine)
This acts as a check and balance mechanism.
The Attorney General is the principal legal advisor to the Government
Article 156(4) of the Constitution of Kenya 2010 specifies that:
“The Attorney-General—
(a) is the principal legal adviser to the Government;
(b) shall represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings; and
(c) shall perform any other functions conferred on the office by an Act of Parliament or by the President.”[16]
The President, on the nomination of the President and the approval of the National Assembly, appoints the Attorney General
Article 156(2) of the Constitution of Kenya 2010 provides:
“The Attorney-General shall be nominated by the President and, with the approval of the National Assembly, appointed by the President.”[17]
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