Prime Minister ‘Akilisi Pōhiva said his government was pursuing an official recommendation to remove the Attorney General from the Privy Council and appoint him as a Cabinet Minister and Member of Parliament.
The recommendation was made in a 31-page report, written by Peter J. Pursglove, a legal consultant in Constitutional Law. The report, which was funded by the Commonwealth, was approved by the Tu’ivakanō government in May 2014.
“Responsible government demands that the Attorney General, as a principal legal advisor to the Government, should be accountable for his actions in the same way as any Minister of Government is accountable,” Pursglove wrote.
“The accountablity can only be achieved if section 31A of the Constitution is repealed and the Attorney General reverts to being a Government Minister.”
The Prime Minister told Kaniva News his government was following up a recommendation to review the Tongan constitution contained in Pursgloves’ report.
His comments came after the king dissolved Parliament last year after he was secretly advised by former Prime Minister Lord Tu’ivakanō that the Pōhiva government was conspired to remove some of the king and Privy Council ‘s powers. Hon. Pōhiva has vehemently denied the claim.
Hon. Pōhiva repeatedly referred to the report when he regularly met with reporters in press conferences in Nuku’alofa before Parliament was dissolved.
Pursglove advised that some sections of the Tongan constitution should be amended, including section 51, so that the Cabinet consisted of the Prime Minister, the Attorney General and such other ministers nominated by the Prime Minister and appointed by the king.
Conflict of Interest
Pursglove said a conflict of interest existed because the Attorney General sat on the king’s Judicial Advisory and Discipline Panel, which had the responsibility of appointing him.
The expert in Constitutional Law said the main duty of the Attorney General was to advise the government and he must be accontable to the government.
Pursglove implied that it was realistic to expect the Tongan Government to act on the advice of a person in whom it has no trust.
“So what is the position where a Government has no confidence in either the competence or the impartiality of the Attorney General?”
He said the selection process to appoint the Attorney General was not transparent and that in the constitution the Government was accountable to Parliament and the people while the Attorney General was accountabe to “no one.”
Currently, the Attorney General is the legal and principal legal advisor to Cabinet and government. However, he is neither a member of government nor does he sit in Cabinet.
“The rationale for this appears to be the belief that the Attorney General should be independent and that if he sits in Cabinet or is a member of the government this independence will somehow compromised,” Pursglove said.
However, he said the position was that of a “salaried public servant” and these were not people who would normally apply to an Attorney General in a sovereign independent State.
“Indeed in some Commonwealth States it is a constitutional requirement that the Attorney General must be a member of the Cabinet.
“As a member of Cabinet the Attorney General is then available to give legal advice at the earliest stages of policy formulation.”
Attorney General
In his report, Pursglove referred to a recommendation by the Constitutional and Electoral Commission regarding the position of Attorney General.
“When the Attorney General is a member of Cabinet, he must, as with the other ministers, normally attend all meetings and can advise Cabinet of the legal position and consequences of any decision before it is made. That may sometimes, avoid the need for subsequent correction and any attendant embarrassment that may cause,” the report said.
Pursglove said the Attorney General should not only be a legal advisor advising Cabinet but also a full member of the Legislative Assembly advising the Parliament on legal issues. The Attorney General should lead debates on government Bills pertaining to legal affairs and be responsible and accountable to Parliament for his ministerial portfolio as Attorney General.
It was highly unusual in a sovereign state such as the Kingdom of Tonga for the Attorney General not to be a member of the Lagislature and the Cabinet.
He recommended that the post of Attorney General should be combined with that of the Minister of Justice, a system that existed in Tonga before the 2010 political reform began.
Independence
Pursglove said: “While the Attorney General is bound to give advice that is both accurate and true that advice does not necessarily have to be independent.”
The Attorney General’s independence as stipulated by the constitution could give rise to the belief that the Attorney General was able to provide parliamentarians and others general advice on matters before the House.
“In fact, as the principal legal advisor to Cabinet and the government, the Attorney General, can never be viewed as truly impartial and independent,” Pursglove wrote.
“As legal advisor his first duty must always be to the government.”
He said it was inevitable that in the eyes of the public even an “independent” Attorney General must become associated with the decisions and policy of the government he advises.
Purgloves also questioned the close relationship between the Attorney General and the Judicial Advisory and Discipline Panel. The dependency of the Attorney General on the goodwill and favour of members of the Panel may be cause for considerable concern as it could compromise the indendence and impartiality of the Attorney General as principal legal advisor to the government.
Pursgloves questioned the good relationship between the Attorney General and the government.
Under section 31A(1) of the constitution it was the king in Privy Council after receiving advice from the Judicial Appointments and Discipline Panel who appointed the Attorney General, something the government must accept constitutionally.
In fact, the government had no control over the Attorney General’s behaviour while in office.
Not transparent
“The selection of an Attorney General by a Judicial Advisory and Discipline Panel is not an open and transparent procedure,” Pursglove wrote.
“How can a Government be sure that the Attorney General selected by the Paneil is appointed on merit and not for some other motive?
“If the Judicial Advisory and Discipline Panel selects an Attorney General who then proves to be incompetent it is the government that will be accountable.
“Under the constitution even an incompetent Attorney General has complete discretion to exercise his legal powers and duties , independently without any intereference whatsoever from any person or authority.
“So while negligent legal advice given by an Attorney General may embarass the Government, result in ministerial resignations and ultimately bring about the defeat of the government, the Attorney General carries on regardless, unaccountable for his actions.
“While the Government remains answerable to Parliament and the people, their legal advisor answers to no one.
“The constitutional provisions do not adequately address the situation where Government acts on the advice of the Attorney General and that advice is wrong or defective.
“In such an event it will be the Government that must accept responsibility before Parliament and the people.
“It is clearly very wrong that the Attorney General should escape resonsbility and accountability in such circumstances.”
Recommendations
Pursglove made the following recommendations regarding the position of the Attorney General.
- Section 31A of the constitution should be repealed in its entirety.
- The Attorney General shall be a Minister and member of both the Legislature and the Cabinet.
- Section 51 of the Constitution shall be amended as follows:
(2) The Cabinet shall consist of the Prime Minister, the Attorney General and such other Ministers who are nominated by the Prime Minister and appointed by the King.
- The Attorney General shall be either an elected or appointed member of the Legislative Assembly. If no suitable candidate to hold the post of the Attorney General is elected as a representative of the nobles or the people to the Legislative Assembly the Prime Minister may nominate a suitably qualified person for appointment as Attorney General under section 51(2)(a) of the Constitution.
- While the constitution will not stipulate that a person appointed to the post of Attorney General must be a lawyer it will be inferred that only a person holding a legal qualification will be nominated by the Prime Minister for the post of Attorney General.
- The post of Attorney General may be held jointly with that of Minister of Justice.
- There should be appointed a Director of Public Prosecutions who shall have charge of all criminal proceedings on behalf of the Crown. A relevant provision providing for the appointment, duties, tenure and independence of the Director of Public Prisecutions shall be included in the Constitution.
The main points
- Prime Minister ‘Akilisi Pōhiva said his government was pursuing an official recommendation to remove the Attorney General from the Privy Council and appoint him as a Cabinet Minister and Member of Parliament.
- The recommendation was made in a 31-page report, written by Peter J. Pursglove, a legal consultant in Constitution Law. The report, which was funded by the Commonwealth, was approved by the Tu’ivakanō government in May 2014.
- The Prime Minister told Kaniva News his government was following up a recommendation to review the Tongan constitution contained in Pursgloves’ report.
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