Proposal: Moving the AG to the Executive Branch where the AG belongs

[Romanoffia]

This is something I have suggested before and got largely poo-pooed for it, but it has merit:

The way to solve the problem with inactive Attorneys General is to move the AG (and all prosecutorial functions) to the Executive Branch of the government where it belongs. Prosecutors, Attorneys General, General Solicitors, etc., are, in every legal system in existence AFAIK, is are members of the Executive Branch in governments that have separation of powers as generally defined.

As such, I propose that the AG, should be moved to the Executive Branch and placed under the authority of that branch, and the Delegate for the following reasons:

1.) Prosecuting criminal charges is an Executive Function.

2.) To have the AG a member of the Judicial Branch is a conflict of interest because you have someone who is not impartial (the AG who wants a conviction) presenting a case to other Judicial Branch members who are supposed to be impartial (no interest other that delivering justice impartially).

3.) An AG is technically a law-enforcement officer (decides whether or not to prosecute in coordination with enforcing the law) and as such, is a function of the Executive Branch.

4.) If the AG is part of the Executive Branch, then it gives authority not only to the Executive Branch (the Delegate in particular) to initiate prosecution via his or her executive officer, the AG, and therefore;

5.) Gives the RA the authority to order the executive via legislative action to order a "Special Prosecutor" to prosecute a case that the Executive Branch may not for political reasons or otherwise to prosecute.

6.) Removing the AG from the Judical Branch prevents any conflict of interests the AG has because he is currently a member of the Judicial Branch:

A.) The AG, despite being a member of the Judical Branch as it is now, is beholden to no one, not even the Chief Justice who is head of the Judicial Branch and being part of the Judicial Branch is largely immune from any control of any branch including the Judicial Branch as the Constitution is written.

B.) If the AG is moved to the Executive Branch then the RA has authority to cheque any Executive action that might quelch prosecution;

C.) Permits the RA to use the process of cheques and balances to force a prosecution and cheque any conflict of interest the AG might have with the Executive;

D.) Permits the Judicial Branch to intercede through legal action brought by any citizen or member of any branch of government in terms of legal action and judicial review.


As it is now, the AG has the power and authority to simply refuse to prosecute for any arbitrary and capricious reason and no one can do anything about it except to call for a recall which simply chucks another spanner in the works.

 

[Iro]

I like the RA part, and in theory I like the Executive move.

The problem is that unless you say so, there's really nothing much happening with the AG's accountability. Am I right? The Delegate in theory is the head of the branch, but what is he going to do about the AG, shun him? Badmouth him? Cabinet members are accountable because they're appointed.... what needs to happen if the AG is under the Delegate, which I approve of, is that we need to think of a specific solution to give the Delegate and Co a good reach over the AG without abusing power.

 

[Ash]

I don't mean to throw a wrench in the works, but how would this help the current paralysis? BWII did not post a campaign and won, and Flem specifically campaigned on doing nothing. The AG is subject to recall, as is every government official. So how would rearranging the deck chairs on the Titanic help?

 

[mcmasterdonia]

I am fairly sure that a draft is being worked on for this particular matter

 

[Kiwi]

Roman makes some good points. Something certainly needs to change.

If or when legislation is drafted, I will decide on the matter then.

 

[Crushing Our Enemies]

I recall seeing a draft of some legislation; can't remember who showed it to me, or when. But if ya'll are talking about the same draft, I remember liking it. Someone ought to propose it!

 

[Great Bights Mum]

IIRC the biggest concern with the Delegate having authority over the AG, was that more often than not, the Delegate was the defendant.

 

[SillyString]

I recently archived the old thread on AG reform at r3n's request, but I can dig it up if anyone wants.

I'm ambivalent about the branch allocation of the AG - I see arguments for both sides - but just wanted to respond to the points Roman raised:

1.) Prosecuting criminal charges is an Executive Function.

Why? It can fall under the purview of any branch desired, including the extant but unnamed Security branch.

2.) To have the AG a member of the Judicial Branch is a conflict of interest because you have someone who is not impartial (the AG who wants a conviction) presenting a case to other Judicial Branch members who are supposed to be impartial (no interest other that delivering justice impartially).

How is this a conflict of interest? I can see a conflict arising if the AG were asked to step in as a THO on a case, absolutely, because holding both offices is a conflict of interest... but how does the conflict exist merely by there being different categories of office within one branch?

3.) An AG is technically a law-enforcement officer (decides whether or not to prosecute in coordination with enforcing the law) and as such, is a function of the Executive Branch.

In RL, this may be the case, but NS systems are not tied to RL ones. We can do anything we want, and really, TNP's AG is not tied to enforcing the law. The AG has no broad powers to do so, or to compel evidence, or witnesses, or anything except present arguments to the court.

4.) If the AG is part of the Executive Branch, then it gives authority not only to the Executive Branch (the Delegate in particular) to initiate prosecution via his or her executive officer, the AG, and therefore;

This I would say depends very heavily on the nature of the position - if it is an appointed position then yes, because the delegate can appoint and dismiss at will. But if it is an elected office, then the AG does not qualify as an "executive officer" of the delegate and is accountable to the electorate instead (just as it is now).

5.) Gives the RA the authority to order the executive via legislative action to order a "Special Prosecutor" to prosecute a case that the Executive Branch may not for political reasons or otherwise to prosecute.

This is not a power the RA has. It is certainly one it could legislate for itself, but the most it could do without such explicit legislation is ask the delegate/AG nicely to pretty please prosecute so-and-so for such-and-such - again, exactly as is the case now.

A.) The AG, despite being a member of the Judical Branch as it is now, is beholden to no one, not even the Chief Justice who is head of the Judicial Branch and being part of the Judicial Branch is largely immune from any control of any branch including the Judicial Branch as the Constitution is written.

The CJ is the head of the court - one can easily argue that the Judicial branch has no formal head. However, the AG is not immune from the will of the RA, in that the RA may remove them from office should they fail to carry out their duties.

B.) If the AG is moved to the Executive Branch then the RA has authority to cheque any Executive action that might quelch prosecution;

Again, this is not the case - the RA has the ability to recall officials, but not to override executive actions. Only the court may do that, regardless of the positioning of the AG.

C.) Permits the RA to use the process of cheques and balances to force a prosecution and cheque any conflict of interest the AG might have with the Executive;

Already addressed - any attempt would have no more legal bearing than a polite request.

D.) Permits the Judicial Branch to intercede through legal action brought by any citizen or member of any branch of government in terms of legal action and judicial review.

I'm not actually sure what you're saying here - does the court not already have the power of judicial review and injunction?

As it is now, the AG has the power and authority to simply refuse to prosecute for any arbitrary and capricious reason and no one can do anything about it except to call for a recall which simply chucks another spanner in the works.

As has been said, changing the AG to the executive branch alone would not do that. Making it an appointed position would, assuming the Delegate is willing to dismiss the AG for non-performance, but as GBM said, raises the issue of prosecuting the delegate themselves.

 

[Romanoffia]

IIRC the biggest concern with the Delegate having authority over the AG, was that more often than not, the Delegate was the defendant.

There's not a problem with that if one considers the fact that the RA can appoint an "Independent Prosecutor" to preclude any conflict of interest under my proposal.

I recently archived the old thread on AG reform at r3n's request, but I can dig it up if anyone wants.

I'm ambivalent about the branch allocation of the AG - I see arguments for both sides - but just wanted to respond to the points Roman raised:

1.) Prosecuting criminal charges is an Executive Function.

Why? It can fall under the purview of any branch desired, including the extant but unnamed Security branch.

2.) To have the AG a member of the Judicial Branch is a conflict of interest because you have someone who is not impartial (the AG who wants a conviction) presenting a case to other Judicial Branch members who are supposed to be impartial (no interest other that delivering justice impartially).

How is this a conflict of interest? I can see a conflict arising if the AG were asked to step in as a THO on a case, absolutely, because holding both offices is a conflict of interest... but how does the conflict exist merely by there being different categories of office within one branch?

3.) An AG is technically a law-enforcement officer (decides whether or not to prosecute in coordination with enforcing the law) and as such, is a function of the Executive Branch.

In RL, this may be the case, but NS systems are not tied to RL ones. We can do anything we want, and really, TNP's AG is not tied to enforcing the law. The AG has no broad powers to do so, or to compel evidence, or witnesses, or anything except present arguments to the court.

4.) If the AG is part of the Executive Branch, then it gives authority not only to the Executive Branch (the Delegate in particular) to initiate prosecution via his or her executive officer, the AG, and therefore;

This I would say depends very heavily on the nature of the position - if it is an appointed position then yes, because the delegate can appoint and dismiss at will. But if it is an elected office, then the AG does not qualify as an "executive officer" of the delegate and is accountable to the electorate instead (just as it is now).

5.) Gives the RA the authority to order the executive via legislative action to order a "Special Prosecutor" to prosecute a case that the Executive Branch may not for political reasons or otherwise to prosecute.

This is not a power the RA has. It is certainly one it could legislate for itself, but the most it could do without such explicit legislation is ask the delegate/AG nicely to pretty please prosecute so-and-so for such-and-such - again, exactly as is the case now.

A.) The AG, despite being a member of the Judical Branch as it is now, is beholden to no one, not even the Chief Justice who is head of the Judicial Branch and being part of the Judicial Branch is largely immune from any control of any branch including the Judicial Branch as the Constitution is written.

The CJ is the head of the court - one can easily argue that the Judicial branch has no formal head. However, the AG is not immune from the will of the RA, in that the RA may remove them from office should they fail to carry out their duties.

B.) If the AG is moved to the Executive Branch then the RA has authority to cheque any Executive action that might quelch prosecution;

Again, this is not the case - the RA has the ability to recall officials, but not to override executive actions. Only the court may do that, regardless of the positioning of the AG.

C.) Permits the RA to use the process of cheques and balances to force a prosecution and cheque any conflict of interest the AG might have with the Executive;

Already addressed - any attempt would have no more legal bearing than a polite request.

D.) Permits the Judicial Branch to intercede through legal action brought by any citizen or member of any branch of government in terms of legal action and judicial review.

I'm not actually sure what you're saying here - does the court not already have the power of judicial review and injunction?

As it is now, the AG has the power and authority to simply refuse to prosecute for any arbitrary and capricious reason and no one can do anything about it except to call for a recall which simply chucks another spanner in the works.

As has been said, changing the AG to the executive branch alone would not do that. Making it an appointed position would, assuming the Delegate is willing to dismiss the AG for non-performance, but as GBM said, raises the issue of prosecuting the delegate themselves.

And that's why prosecution is an executive function with the ability for the legislative branch to initiate a 'Special Prosecutor'/'Independent Council/etc.

As for putting the AG under an extant (current or future) security service, it would just be putting the AG into the executive branch as security is a function of the executive (or, you could extend AG control to the SC which I don't think would be a good idea).

The Court does have the power of Judicial Review and Injunction, but not the authority to initiate those actions on its own. That means the court cannot simply say, 'we don't like this, let's issue and injunction' because such actions are purely executive or legislative if the legislature is afforded such ability to act by forcing executive action.

Mainly, the AG or a Solicitor General (or any other prosecutorial entity) has two duties: to enforce the laws via legal actions either initiated by the AG or someone filing a complaint via the AG, and; to act as a general advocate on behalf of any government official or authorized agent being prosecuted for an action that purely arises from their governmental duties.

Distilled down, an Attorney General is technically a chief law enforcement officer, which means that the AG is serving an executive function, which means to have the AG (who serves and executive function) as an appendage to the Judicial Branch/Court is essentially playing fast and loose with separation of powers between the branches of government. See what I am driving at?

Also, the Judicial Branch has no authority to initiate prosecution or investigation because that is an executive function. Having the AG as an appendage or function of the Judicial Branch precludes, constitutionally (because he is not given that authority) precludes the AG from actually initiating prosecution on his own. This defeats the whole concept of the executive abilities (the ability to actually act in an executive fashion - i.e.: execute the law and constitution) of the AG.

And, logically speaking, the Judicial Branch cannot initiate a criminal charge, investigation at all. If the AG is part of the Judicial Branch, then by constitutional logic of separation of powers, the AG has no authority to bring charges against anyone because that is an executive function.

Hence, the AG must be moved to the Executive Branch or you end up with the situation we have now: An AG who clearly is present but refuses to prosecute or even deliver a decision to not prosecute.

In the mean time, all that can be done is to recall the AG and replace him ASAP and get on with things, and then amend the laws and Constitution accordingly.

 

[Ash]

IIRC the biggest concern with the Delegate having authority over the AG, was that more often than not, the Delegate was the defendant.

IRL it seems to work better when an AG is elected and independent of the chief executive. I think it's best to keep the AG as an elected position. Were the AG in the Executive branch and/or appointed, then s/he would be beholden to the Delegate. I'm not sure if I want this proposal to go through at this time, especially with the AG Omnibus Bill working its way through the RA. Let's see if that reform will fix the judicial system issues we have before tinkering around some more.