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Attorney general

From Wikipedia, the free encyclopedia

In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG) is the main legal advisor to the government. The plural is attorneys general (traditional) or attorney generals.[1][2][3]

In some jurisdictions, attorneys general also have executive responsibility for law enforcement, prosecutions or even responsibility for legal affairs generally. In practice, the extent to which the attorney general personally provides legal advice to the government varies between jurisdictions, and even between individual office-holders within the same jurisdiction, often depending on the level and nature of the office-holder's prior legal experience.

Where the attorney general has ministerial responsibility for legal affairs in general (as is the case, for example, with the United States Attorney General or the Attorney-General for Australia, and the respective attorneys general of the states in each country), the ministerial portfolio is largely equivalent to that of a Minister of Justice in some other countries.

The term was originally used to refer to any person who holds a general power of attorney to represent a principal in all matters. In the common law tradition, anyone who represents the state, especially in criminal prosecutions, is such an attorney. Although a government may designate some official as the permanent attorney general, anyone who came to represent the state in the same way could, in the past, be referred to as such, even if only for a particular case. Today, however, in most jurisdictions, the term is largely reserved as a title of the permanently appointed attorney general of the state, sovereign or other member of the royal family.

Civil law jurisdictions have similar offices, which may be variously called "public prosecutor general", "procurators", "advocates general", "public attorneys", and other titles. Many of these offices also use "attorney general" or "attorney-general" as the English translation of the title, although because of different historical provenance, the nature of such offices is usually different from that of attorneys-general in common law jurisdictions.

Etymology

In regard to the etymology of the phrase Attorney General, Steven Pinker writes that the earliest citation in the Oxford English Dictionary is from 1292: "Tous attorneyz general purrount lever fins et cirrographer" (All general attorneys may levy fines and make legal documents).[4] The phrase was borrowed from Anglo-Norman French when England was ruled by Normans after the conquest of England in the 11th-century. As a variety of French, which was spoken in the law courts, schools, universities and in sections of the gentry and the bourgeoisie, the term relating to government got introduced into English. The phrase attorney general is composed of a noun followed by the postpositive adjective general and as other French compounds its plural form also appears as "attorneys generals".[5][6] As compared to major generals, a term that also originates from French ("major-général") and also has a postpositive adjective, it also appears as "attorney generals". Steven Pinker writes: "So if you are ever challenged for saying attorney-generals, mother-in-laws, passerbys ... you can reply, 'They are the very model of the modern major general.'"[4]

Attorneys-general in common law and hybrid jurisdictions

Attorneys-General in common law jurisdictions, and jurisdictions with a legal system which is partially derived from the common law tradition, share a common provenance.

Australia

In Australia, the Attorney-General is the chief law officer of the Crown and a member of the Cabinet. The Attorney-General is the minister responsible for legal affairs, national and public security, and the Australian Security Intelligence Organisation. Christian Porter is the current Attorney-General. The Australian states each have separate attorneys-general, who are state ministers with similar responsibilities to the federal minister with respect to state law.

Functions of the state and federal attorneys-general include the administration of the selection of persons for nomination to judicial posts, and authorizing prosecutions. In normal circumstances, the prosecutorial powers of the Attorney-General are exercised by the Director of Public Prosecutions and staff; however, the Attorney-General maintains formal control, including the power to initiate and terminate public prosecutions and take over private prosecutions. Statutory criminal law provides that prosecutions for certain offences require the individual consent of the Attorney-General. This is generally for offences whose illegality is of a somewhat controversial nature or where there is perceived to be a significant risk that prosecutions of a political nature may be embarked upon. The Attorney-General also generally has the power to issue certificates legally conclusive of certain facts (e.g., that the revelation of certain matters in court proceedings might constitute a risk to national security); the facts stated in such certificates must be accepted by the courts and cannot legally be disputed by any parties. The Attorney-General also has the power to issue a nolle prosequi with respect to a case, which authoritatively determines that the state (in whose name prosecutions are brought) does not wish to prosecute the case, so preventing any person from doing so.

For the Attorneys-General of the various states and territories of Australia see:

Bangladesh

Barbados

Canada

The Attorney General of Canada (French: Procureur général du Canada) is a separate title held by the Canadian Minister of Justice (Ministre de la Justice), a member of the Cabinet. The Minister of Justice is concerned with questions of policy and their relationship to the justice system. In their role as attorney general, they are the chief law officer of the Crown.

A separate cabinet position, the Minister of Public Safety (Ministre de la Sécurité publique), formerly the "Solicitor General", administers the law enforcement agencies (police, prisons, and security) of the federal government.

For the Attorneys-General of the various provinces of Canada see:

Fiji

In Fiji, the role of the Attorney General is defined as "providing essential legal expertise and support to the Government". More specific functions include "legislative drafting", "legal aid", "the prerogative of mercy" (advising the President), "liquor licensing" and "film censorship".[7]

The current Attorney General is Aiyaz Sayed-Khaiyum. In January 2008, he sparked controversy by accepting other government positions in addition to his role as Attorney General. Sayed-Khaiyum is currently responsible also for "Public Enterprise, Electoral Reform and Anti-Corruption". An article in the Fiji Times pointed out that "never before in the history of this nation has the Attorney-General held a portfolio dealing with matters other than the law and the judiciary", and criticised the decision.[8]

Hong Kong

The Secretary for Justice, known as the Attorney-General before the Transfer of the Sovereignty in 1997, is the legal adviser to the Hong Kong Government and heads the Department of Justice. They are assisted by five law officers, namely:

(The Administration and Development Division is headed by an Administrative Officer.)

Crimes and offences are prosecuted at the suit of the Secretary of Justice.

The Secretary of Justice, appointed by the Chinese government on the advice of the Chief Executive of Hong Kong, is an ex officio member of the Executive Council of Hong Kong. The position is normally held by a legal professional, and was, before July 2002, a civil service position.

India

Ireland

The Attorney General of Ireland is the legal adviser to the Government and is therefore the chief law officer of the State. The Office of the Attorney General, is made up of a number of different offices:

  • The Attorney General's Office (located at Merrion Street, Dublin 2) containing the Advisory Counsel to the Attorney General
  • The Office of Parliamentary Counsel to the Government (also located at Merrion Street, Dublin 2) containing the Parliamentary Counsel who draft legislation and have responsibilities in the area of Statute Law revision
  • The Chief State Solicitor's Office (CSSO) (located at Little Ship Street, Dublin 8) containing the solicitors representing the Attorney and the State

Since the enactment of the Prosecution of Offenses Act 1974 the responsibility for the prosecution of indictable criminal offences is mostly in the hands of the Director of Public Prosecutions who is by law independent of the Attorney General and the State. The current attorney general is Séamus Woulfe, SC.

Isle of Man

In the Isle of Man, the Attorney General is a Crown appointment (appointed by the UK government) and sits in the Legislative Council of the Isle of Man, 'ex officio'.

Israel

The Attorney General of Israel is the head of the public prosecution from the state, the person who advises the government in legal matters, the person who represents the state's authorities in the courts, and advises in preparation of law memoranda of the government in general and the Justice Minister in particular (likewise he examines and advises for private proposals for a law of Knesset members).

Jamaica

This is a position which existed in Jamaica for a long time.

The Hon. Marlene Malahoo Forte, QC, MP is the new Attorney General of Jamaica as of March 7, 2016.[9]

Kenya

In Kenya the Attorney General is the Principal Legal Adviser to the Government and ex officio Member of Parliament and Cabinet. His duties include the formulation of legal policy and ensuring proper administration of Kenya's legal system including professional legal education. Assisting the Attorney General in the performance of his duties as Principal Legal Adviser to the Government are:

  • Solicitor General
  • Senior Deputy Solicitor General
  • Director of Public Prosecutions
  • Registrar General
  • Administrator General
  • Chairman of Advocates Complaints Commission
  • Chief Parliamentary Counsel
  • Chief State Counsel

Kiribati

In Kiribati, the Attorney General is defined by section 42 of the Constitution as "the principal legal adviser to the Government". The Constitution specifies: "No person shall be qualified to hold or to act in the office of Attorney-General unless he is qualified to practise in Kiribati as an advocate in the High Court." The current Attorney General, as of 2016, is the Honourable Tetiro Semilota.[10]

Malaysia

In Malaysia the Attorney-General or Peguam Negara (as he is referred to in Bahasa Malaysia) is the principal legal adviser to the Government. He is also the principal public prosecutor in the country, and is also known as the Public Prosecutor. He has the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah court, a native court or a court-martial. The current Attorney-General of Malaysia is Tommy Thomas since 2018.

Maldives

Mauritius

In Mauritius, the Attorney-General, who should be a barrister, is the principal legal adviser to the government and holds the office of a minister.

The Attorney-General's Office is also responsible for the drafting of legislation, and vetting of all contracts or agreements of which the government is a party, including international agreements, treaties or conventions.

Myanmar

Nepal

In Nepal, the Attorney General is the chief legal adviser of Government of Nepal as well as its chief public prosecutor. An Attorney General is appointed by the President on the recommendation of Prime Minister. The Attorney General's Office is a constitutional body under the Constitution of Nepal (2072). For a person to be eligible for the post of Attorney General, they must also be qualified to be appointed as a judge of the Supreme Court.[11]

New Zealand

In New Zealand, the Attorney-General is the chief law officer and primary legal advisor of the New Zealand government.[12] The Attorney-General is the Minister responsible for the Crown Law Office, the Parliamentary Counsel Office, and the Serious Fraud Office.[12] Historically, the post could be held either by a politician or by a senior jurist, but today, it is invariably held by a member of Parliament. The Attorney-General attends Cabinet, but the post is not the same as the Minister of Justice. By tradition, persons appointed to the position of Attorney-General have been lawyers. Only two former Attorneys-General have not been lawyers, most recently Dr Michael Cullen who held the post in 2005, and again from 2006.

Pakistan

The Attorney-General of Pakistan is the legal adviser to the government of the Pakistan and its public prosecutor.

Philippines

The Attorney General of the Philippines was an office that existed from 1901 until 1932, when the office was abolished and its functions taken over by the Secretary of Justice. Since then, the Solicitor General of the Philippines, previously the second law officer, has been the principal law officer and legal defender of the Philippine Government. The Office of the Solicitor General is the law firm of the Republic of the Philippines. It is tasked with representing the Philippines, the Philippine Government, and all its officials in any litigation or matter requiring the services of a lawyer especially before appellate courts.[13] It is an independent and autonomous office attached to the Department of Justice for budgetary purposes.[14]

Samoa

In Samoa, the Attorney General is the legal adviser to the government. The current Attorney General is Aumua Ming Leung Wai.[15]

Singapore

The Attorney-General of Singapore is the legal adviser to the government of the Republic of Singapore and its public prosecutor. The current Attorney-General is Lucien Wong.

Sri Lanka

The Attorney-General of Sri Lanka is the chief legal adviser of the Government of Sri Lanka and head of the Attorney-General department which is the public prosecutor.

Tonga

The office of Attorney General was established in Tonga in 1988, and was held jointly with the portfolio of Justice Minister until the two were separated in 2009.[16][17] The Attorney General is defined as the "Chief Legal Advisor to Government".[18]

Trinidad & Tobago

According to the Constitution of Trinidad and Tobago, the supreme law of the nation, The Attorney General shall be responsible for the administration of legal affairs in Trinidad and Tobago and legal proceedings for and against the State shall be taken— (a) in the case of civil proceedings, in the name of the Attorney General; (b) in the case of criminal proceedings, in the name of the State.

United Kingdom

England and Wales

The Attorney General for England and Wales is similarly the chief law officer of the Crown in England and Wales, and advises and represents the Crown and government departments in court. In practice, the Treasury Solicitor (who also has the title of Procurator General) normally provides the lawyers or briefs Treasury Counsel to appear in court, although the Attorney General may appear in person. The person appointed to this role provides legal advice to the Government, acts as the representative of the public interest and resolves issues between government departments.

The Attorney General has supervisory powers over the prosecution of criminal offences, but is not personally involved with prosecutions; however, some prosecutions (e.g. riot) cannot be commenced without their consent, and they have the power to halt prosecutions generally. Criminal prosecutions are the responsibility of the Crown Prosecution Service, headed by the Director of Public Prosecutions. The Attorney General may appeal cases to the higher courts where, although the particular case is settled, there may be a point of law of public importance at issue.

The Attorney General's deputy is the Solicitor General for England and Wales.

Under the Government of Wales Act 2006, the Counsel General is the chief legal adviser to the Welsh Assembly Government.

Northern Ireland

Since the prorogation of the Parliament of Northern Ireland in 1972, the Attorney General for England and Wales was also Attorney General for Northern Ireland. The separate office of Attorney General for Northern Ireland was re-created alongside the new office of Advocate General for Northern Ireland upon the devolution of policing and justice powers to the Northern Ireland Assembly in 2010.

Scotland

Under the recent constitutional reforms, the Lord Advocate has become an officer of the Scottish Government, while the United Kingdom Government is advised on Scots law by the Advocate General for Scotland.

The Lord Advocate is assisted by the Solicitor General for Scotland.

Other attorneys-general in the UK

The Attorney General of the Duchy of Cornwall is the chief legal adviser to the Prince of Wales, and there is a separate Attorney General for the Duchy of Lancaster, an appointment that is held by the Crown.

United States

In the federal government of the United States, the Attorney General is a member of the Cabinet and, as head of the Department of Justice, is the top law enforcement officer and lawyer for the government. The Attorney General may need to be distinguished from the Solicitor General, a high Justice Department official with the responsibility of representing the government before the Supreme Court. In cases of exceptional importance, however, the Attorney General may choose personally to represent the government to the Supreme Court.

The individual U.S. states and territories, as well as the federal district of Washington, D.C. also have attorneys general with similar responsibilities. The majority of state attorneys general are chosen by popular election, as opposed to the U.S. Attorney General, who is a presidential appointee confirmed by the Senate.

In nearly all United States jurisdictions the attorney general is the chief law enforcement officer of that jurisdiction, and as such attorney general may also be considered a police rank. The proper form of addressing a person holding the office is addressed Mister or Madam Attorney General, or just as Attorney General. The plural is "Attorneys General" or "Attorneys-General".

Zimbabwe

The Attorney General is the chief legal advisor of the government of Zimbabwe. The office falls under the Ministry of Justice and Legal Affairs.

Similar offices in non-common law jurisdictions

Non-common law jurisdictions usually have one or more offices which are similar to attorneys-general in common law jurisdictions, some of which use "attorney-general" as the English translation of their titles.

Afghanistan

Brazil

Crimea

Dominican Republic

Germany

Hungary

Indonesia

Italy

Mexico

Netherlands

In the Netherlands, there are two types of attorneys-general, that are only historically related.

The first type of attorney-general ("advocaat-generaal" in Dutch) is the public prosecutor in criminal cases at appellate courts.

The second type of attorney-general ("procureur-generaal", while their replacements are called "advocaat-generaal") is an independent advisor to the Supreme Court. These people give an opinion on cases (called "conclusies") in any field of law (not just criminal law), supported by a scientific staff. The Supreme Court may either follow or reject the opinion of the attorney-general (which is published together with the eventual decision). In a way, an attorney-general acts as yet another judge, but in the Dutch system that does not allow dissenting opinions to be published, it is the only way to reflect different perceptions on a case. The Procureur-Generaal also prosecutes members of parliament in the case of misfeance.[19]

Dutch attorneys-general do not normally advise the government.[citation needed]

Norway

Russia

Serbia

Soviet Union

Spain

Vietnam

Lists of countries, states or territories with attorneys-general

See Justice ministry § Related articles and lists

References

Citations

  1. ^ Collins English Dictionary
  2. ^ American Heritage Dictionary
  3. ^ Merriam-Webster Dictionary
  4. ^ a b Pinker, Steven (1999). Words and Rules: The Ingredients of Language (1st ed.). New York, NY: Basic Books. pp. 25, 28. ISBN 0-465-07269-0. Retrieved 14 May 2017.
  5. ^ "U.S. Attorneys Generals Protest Trump's Ban: Liberty Is Bedrock of Our Country". Haaretz.com. Retrieved 14 May 2017.
  6. ^ "Former Attorneys Generals at Work". New York Times. The New York Times Company. Retrieved 14 May 2017.
  7. ^ Office of the Attorney General Archived October 24, 2015, at the Wayback Machine. (Fiji), official website.
  8. ^ "Role of the Attorney-General" Archived 2008-01-01 at the Wayback Machine., Fiji Times, January 6, 2008.
  9. ^ Carter, Jediael (9 March 2016). "Women welcome appointment to executive". The Jamaica Observer. Retrieved 22 March 2016.
  10. ^ "Kiribati appoints first female Attorney-General". www.pressreader.com. September 30, 2016.
  11. ^ "Office Of The Attorney General". Archived from the original on 2013-09-19. Retrieved 4 July 2015.
  12. ^ a b Briefing Paper for the Attorney-General (Crown Law Office, October 2017) at 3.
  13. ^ "Main". 7 February 2011. Archived from the original on 7 February 2011. Retrieved 24 January 2017.
  14. ^ "Welcome to the Department of Justice - Republic of the Philippines | Tel: (+632) 523 8481, (+632) 523 6826". Doj.gov.ph. Archived from the original on 2012-03-10. Retrieved 2012-05-04.
  15. ^ Tait, Maggie (12 May 2008). "Customary land excluded from Samoa bill". The New Zealand Herald. Retrieved 17 September 2011.
  16. ^ "Minister of Justice and Attorney General resigns" Archived May 27, 2011, at the Wayback Machine., Matangi Tonga, June 1, 2009
  17. ^ "Tonga's new Attorney General" Archived 2011-05-27 at the Wayback Machine., Matangi Tonga, June 2, 2009
  18. ^ "Attorney General of the Kingdom of Tonga"[permanent dead link], Tongan government website, March 11, 2009
  19. ^ "wetten.nl - Regeling - Wet op de rechterlijke organisatie - BWBR0001830". wetten.overheid.nl. Retrieved 2017-01-11.

Sources

  • Barzilai, Gad; Nachmias, David (1997). The Attorney General: Authority and Responsibility. Principles, Institutions in Comparative Perspective, Analysis and Recommendations for Reforms. No. 6. Jerusalem: Israel Institute for Democracy.
  • Barzilai, Gad (2010). The Attorney General and the State Prosecutor: Is Institutional Separation Warranted?. Jerusalem: Israel Institute for Democracy.

External links

This page was last edited on 8 December 2018, at 07:50
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