Media Release (19 February 2015)
NALESONI T. TUPOU B.A. LL.B (Auck), Barrister, Loea & Fakafofonga Lao
DISSEMINATION OF INFORMATIONS TO ASSIST IN OUR UNDERSTANDING ABOUT THE FUNCTIONS AND ROLE OF THE OFFICE OF THE ATTORNEY GENERAL AND ALSO OF THE OFFICE OF THE SOLICITOR GENERAL IN THE KINGDOM OF TONGA
KOE NGAAHI FAKAMATALA KE TOKONI KE MAHINO KIATE KITAUTOLU ‘A E NGAAHI FATONGIA MOE KAVEINGA NGAUE ‘A E ‘OFISI KOIA ‘O E ‘ATENI SENIALE PEA MOE ‘OFISI KOIA ‘O E SOLISITOA SENIALE ‘I HE PULE’ANGA TONGA
- ‘Oku ou fakatulou atu pea mo Ha’a Moheofo, kae’uma’a ‘a e Pule’anga ‘a Tupou mo Hou’eiki pea ‘oku ou kole keu hufanga he ngaahi Tala fakatapu kotoa pe kuo ‘osi hono haofaki atu mei he ngaahi Pangai kotoa pe ‘o e ‘ilo, ‘o e Siasi, ‘o e Lao, ‘o e Fakamaau’anga, mo e ngaahi Pangai kotoa pe ‘oku ne ‘ataakai kitautolu ‘i he ha’ofanga koia ‘o e mamani ko’eni. ‘Oku ou tolou atu kiate kimoutolu kotoa pea hufanga atu ‘i he ngaahi fakatapu koia.
- ‘Oku ou kole keu tuku atu ‘a e momeniti ko’eni ha ngaahi fakamatala ‘e lava ‘o tokoni kiate kitautolu katoa ketau toe mahino’i ange ‘a e kaveinga moe fatongia ‘o e ngaahi ‘ofisi mahu’inga ‘i he pule’anga, kae tautefito ki he Pule’anga ‘i Tonga ‘oku ‘iloa koe ‘Ateni Seniale pea mo e ‘ofisi koia ‘o e Solisitoa Seniale.
- Koe’uhi ko e nounou ‘a e taimi ki he kaveinga ‘oku ou feinga ke ‘oatu – ‘e fakapaalataha pe ‘eku talanoa ki he anga ‘o e ongo ‘ofisi ko’eni mo hona fatongia kae tautefito ki hono Lao koia ‘o e ngaue ‘a e ongo ‘ofisi ko’eni ‘i he Pule’anga Nu’usila. ‘Oku tatau pe ‘a e Lao ‘o Nu’usila, ki he Lao koia ‘o e ‘aho ni.
- My opinion in this document are mine alone and without prejudice to any opinions in the Courts in Tonga, in the legal fraternity in the Kingdom and also overseas, but this opinion is given to you to assist in our greater understanding of the offices of the Attorney General and also the office of the Solicitor General, according to the Law of New Zealand, as of todays date.
- This opinion will also give a reflection for what we need to know about the functions of the office of the Attorney General and the Solicitor General in the Kingdom of Tonga.
- Therefore, my focus will be primarily about the Laws of these two offices according to the Legislation and Common Law of New Zealand.
HOW THE OFFICE OF THE ATTORNEY GENERAL EXERCISE ITS FUNCTION
- Under the Constitution Act 1986, of New Zealand part II, it does provide for the exercise of the functions of the Attorney General by the Solicitor General. In the same Legislation, the Solicitor General may exercise any of the functions or powers of the Attorney General. A Solicitor General may also with the consent of the Attorney General, delegate the exercise of such functions or powers to a Deputy Solicitor General. In New Zealand, the Governor General may appoint a Barrister and Solicitor to act in a place of the Solicitor General where the office is vacant or the Solicitor is unable to act.
ATTORNEY GENERAL IN NEW ZEALAND
- The Attorney General in New Zealand is a Cabinet Minister but by convention he/she must exercise independent judgment in the public interest.
- The party Political considerations must not bear upon the discharge of the office.
- The Attorney General is the Senior Law Officer of the Crown and it’s the Minister responsible for the conduct of Prosecutions in Courts.
- The functions of the Attorney General includes assenting to criminal prosecutions for certain offences and staying prosecution by entering a Nolle Prosequi.
- “In all case, in New Zealand it was held by the Courts in New Zealand that ‘independence from Political Direction of prosecutorial decision making is an established constitutional practice in New Zealand” – refer to Fox v A-G 3 NZLR 62 & 69 – Court of Appeal.
- Decision on whether to prosecute involved 2 major considerations “evidential sufficiency and the public interest”
- In practice, it is the Solicitor General who exercises the Attorney General’s Law enforcement functions. The Solicitor General is an independent Crown appointee (and Head of the Crown Office) to stands in the shoes of the Attorney General when decisions are made to bring or stay prosecutions. The Solicitor General may exercise any of the functions or powers of the Attorney General.
CABINET MANUAL OF THE GOVERNMENT OF NEW ZEALAND
- Under the Cabinet Manual of the Government of New Zealand it is recorded that “well settled principles that decisions of the Attorney General and the Solicitor General are made ‘by them alone and are not considered by Cabinet or by any other executive of the Government’”. This rule of Law is very strictly adhered to into the United Kingdom. In New Zealand there is relax attitude about it and that the Attorney General is at liberty to consult with the administration/Government, at any time.
HISTORY OF THE OFFICE OF THE ATTORNEY GENERAL
- The Office of the Attorney General goes back to the thirteenth century when the King was not able to appear in person in his Courts to plea his cause, he then appointed an Attorney to act on his behalf. In other words, the King sues by his Attorney and that the Attorney sues for the King.
- The first formal appointment as the Attorney for the King was to the King’s Bench in 1312. The modern title of the first Law Officer was adopted in 1461 with the appointment of the Office of the Attorney General in England. The first Solicitor for the King was appointed in the same year to assist and to be a Deputy for the Attorney General and this appointment established the original office of the Solicitor General.
- In the United Kingdom, these offices are chosen from prominent members of the Bar who are members of the Government for the time being in power.
- In New Zealand the office of the Attorney General is always a Cabinet Minister of the Government.
- The Office of the Solicitor General is not a member of the Government or the Parliament in New Zealand. He is a Government Official who holds office as Head of the Crown Law Office.
AREAS OF RESPONSIBILITY OF THE ATTORNEY GENERAL
- These relates to:
- a Principal Legal Adviser to the Crown
- b Being named as the Plaintiff or the Defendant representing the Crown in proceedings brought by or against the Government
- c Principal Law Officer
- d And linked between Executive Government and the Judicially.
22. The Attorney General must act always in the public interest. This officer stands in special relationship with Parliament, the Courts and the Executive, and is a lawyer by training, with experience and knowledge of provisions.
- By Convention the Attorney General must exercise independent judgment, impartiality, without exception for party political aims or particular policy goals. He should be free of any compromising portfolio or policy obligations although he may consult with Cabinet Ministers or Government over issues having political implications.
- At times, the involvement of the Attorney General in the administration of Justice may invite allegations of political interference – it is desirable that the Solicitor General should exercise most of the functions of the Office. It is a convention in New Zealand that the Attorney General have not undertaking prosecutorial or other Law officers decision in Criminal matters but have deferred those matters to their Solicitor General who is entirely remove from the political process.
- Usually the office of the Attorney General also includes the Office of the Solicitor General and this means that the powers and duties and functions of the Office of the Attorney General devolve upon the Solicitor General by operation of Law.
- In theory, the Chief Legal Adviser of the Government, namely the Solicitor General exercise his/her functions by the Law and the Government and must exercise informed the judgment as to the legal and constitutional requirements of executive power in the Government.
- However, in practice most of the functions are discharged by the Solicitor General, at most times. And when the Solicitor General exercise any of the powers or functions of the Attorney General – it is not a delegation but an original exercise of the power.
- The Solicitor General must discharge his/her functions of office independently of the Official Government position.
- The office of the Solicitor General is apolitical and the officers remains in office not withstanding a change of Government.
- At times the Attorney General formally represent Crown in the Courts whenever rights of a public character comes into question – reference – Gouriet v Union of Post Office Workers  AC.435-House of Lords.
- In other words, where there are important cases affecting the Public Interest, the Attorney General may appear in person to present submissions and arguments on behalf of the Office of the Attorney General, being the Chief Legal Advisers to the Government.
- Recently, one of the most publicly aspect of the Attorney General’s role is the responsibility for criminal prosecutions.
- The Attorney General does not, however, direct or cause charges to be laid. While the Attorney General and the agents of the Attorney General may provide legal advice to the Police, the decision whether or not to lay charges is for the Police. Once the charges is laid the decision is whether the prosecution should proceed, and in what manner, is for the Attorney General and the Solicitor General. It is now an accepted and important constitutional principle that the Attorney General and the Solicitor General must carried out the Criminal Prosecution responsibilities independent of the Government/Cabinet or of any other partisan political pressures. The responsibility of the Attorney General for individual criminal prosecutions must be undertaken (and seem to be undertaken) on strictly objective and legal criteria, free of any political considerations. Whether to initiates or stay a criminal proceeding is not an issue of common policy. This responsibility has been characterized as a matter of the Attorney General acting as the Attorney for the King or the Queen (as applicable to the country concern).
- There are a wide range of policy considerations which may be calculated and executing the responsibility of the Attorney General in his or her role in criminal prosecutions. The Attorney General may choose to consult the Government or Cabinet on some of these considerations but any decision relating to the conduct of individual prosecutions must be the responsibility of the Attorney General and the Attorney General alone – independent of the Traditional Cabinet Decisions making process or the Government making process. In practice, and in New Zealand, the vast material cases and decisions for such prosecutions are made by the office of the Attorney General or the Crown Solicitors/Solicitor General.
- The conduct of a criminal prosecution is associated with responsibility to represent the public interest. The public interest includes not only the community as a whole and the victim but also the accused. The Crown has a distinct responsibility to the Court to present all the critical evidence available.
- The responsibility is to present the case in a fair manner but not necessary to convict. This is a fundamental perception of Criminal Law, even if it’s not a particularly well understood concept amongst the general public. One of the responsibilities of the Attorney General is to ensure the public do respect for the rule of Law and to do that, the office of the Attorney General is to give assistance to the public and understanding the nature and limits of the prosecutorial function of the office of the Attorney General.
- At most time the Attorney General can become involved in decision making in relation to individual criminal cases but such a practice does opened the Attorney General and being vulnerable to accusation of political interference if cabinet does interfere with the role of the Attorney General. Therefore it is by tradition that the day to day decision making in the hands of the office of the Attorney General must be left to the hands of the Attorney General or the Solicitor General.
- In New Zealand it has been pronounced by the Highest Court in New Zealand in 2002 that in all cases, the Attorney General is independence from Political directions of prosecutorial decision making and it is an established constitutional practice in New Zealand. This is a pronouncement of Law in the Highest Court in New Zealand about the functions of the Attorney General.
KOE HA HONO MAHU’INGA ‘O E FAKAMATALA ‘O E NGAUE ‘A E ‘OFISI ‘O E SOLISITOA SENIALE PEA MOE ATENI SENIALE ‘O NU’USILA ‘I HE PULE’ANGA TONGA
- ‘Oku ou lave’i lelei kuo tu’o lahi ‘a e ngaahi fakamalanga ‘a e Kau Fakamaau Lahi ‘i he Fakamaau’anga Lahi ‘o Tonga ‘o pehe – kapau ‘oku loto ‘a e Pule’anga Tonga ke fakakau mai ki he anga koia ‘o e ngaahi Pule’anga ‘o e Kominiueli, pea ‘oku totonu leva ke muimui pe kaungame’a lelei ‘a e anga koia ‘o e Lao ‘o Tonga mo e fa’ahinga mo’ui ‘a e ngaahi Pule’anga koia ‘oku nau memipa ‘i he Kominiueli.
- If the Government of Tonga, it has been pronounced many many times by the Highest Court in Tonga, wishes to be part of the Common Law of Nations, then Tonga must either follow or at least be persuasive about other countries in the Commonwealth and its Legislation and Common Law, to follow.
- ‘I Nu’usila – ‘Oku talamai ‘i he Fakamaau’anga Lahi ‘o Nu’usila, Court of Appeal, ‘oku tu’u tokotaha ‘a e ‘Ofisi koia ‘o e Attorney General ‘o mama’o ‘aupito ia mei ha ngaahi tu’utu’u ni fakapolitikale ‘oku fai atu kiai tautefito ki ha kaveinga ‘i ha faka’ilo ha taha ‘i he Fakamaau’anga pea ‘oku hoko ia koe ‘ulungaanga ia faka-Konisitutone ‘i he Lao ‘o Nu’usila.
- “Hala Vuna ‘oku tapa ai ‘a sio’ata”
Tulou atu pea moe ta’anga ko’eni ‘oku ‘asi ai ‘a e fo’ilea koia koe ‘Hala Vuna ‘oku tapa ai ‘a sio’ata’ – Ko ‘eku ‘uhinga atu koe ngaahi sio’ata e ‘oku tapa mei he ngaahi fonua ‘o e Kominiueli mo honau ngaahi Lao mo honau ngaahi fatongia, pea ‘oku tapa atu ‘a e sio’ata ko’eni ‘i he hala toputapu ‘o e ‘otu motu ‘o Tonga ki he ngaahi hala kotoa pe ‘oku nau hu’u ki he hala Vuna ‘o mafola atu ai ‘a e maama ki mamani.
Himi 367: 4
Maama ‘o e fu’u kakai
Nofo he po’uli lahi
Keke ulo mei he Langi
- ‘Oku ‘oatu ‘a e faka’apa’apa lahi kiate kimoutolu kotoa pea ketau femahino’aki, koe ngaahi fakamatala ko’eni – ko e fakamatala moe fakakaukau pe ‘a’aku tokotaha pea ‘oku ou kole keu tokoni atu “KE MAAMA MAI”