Discussion on the Role of a Government Attorney in Public Prosecutions, Nepal Constitution Foundation (May 2, 2013)

 I do not have many comments here. I think it was a pretty good discussion programme. There is one issue which I want to pinpoint before I close the discussion. Prosecutors are rarely disciplined or criminally prosecuted for their misconduct, and the victims of this misconduct are generally denied any civil remedy because of prosecutorial immunities. However, when we talk about taking action against a government attorney simply because he was not able to prove his case, it may have other impacts on the criminal justice system.

When prosecutors act as advocates, absolute immunity applies. This is more or less the common law tradition. Under absolute immunity, prosecutors are immunized even when the plaintiff establishes that the prosecutor acted intentionally, in bad faith, and with malice. In Imbler v. Pachtman (1976), the American Supreme Court observed: “The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties. These include concern that harassment by unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.”

However, when prosecutors act as investigators or administrators, qualified immunity applies. In the United States, Qualified immunity, when applicable, shields government officials from liability for the violation of an individual’s federal constitutional rights. This grant of immunity is available to employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate clearly established law. The defense of qualified immunity was created by the U.S. Supreme Court, replacing a court’s inquiry into a defendant’s subjective state of mind with an inquiry into the objective reasonableness of the contested action. I think we need to analyze this approach more seriously in the paper. The linkages with the Nepalese laws must also be established to make the jurisprudence clear.