In most common law jurisdictions, the attorney general or attorney-general is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement, public prosecutions or even ministerial 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.
The term is 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 comes to represent the state in the same way may, 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.
Civil law jurisdictions have similar offices, who may be variously called "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
- 1 Attorneys-General in common law and hybrid jurisdictions
- 1.1 Afghanistan
- 1.2 Australia
- 1.3 Canada
- 1.4 Fiji
- 1.5 Hong Kong
- 1.6 India
- 1.7 Ireland
- 1.8 Isle of Man
- 1.9 Israel
- 1.10 Jamaica
- 1.11 Kenya
- 1.12 Kiribati
- 1.13 Malaysia
- 1.14 Maldives
- 1.15 Mauritius
- 1.16 Nepal
- 1.17 New Zealand
- 1.18 Pakistan
- 1.19 Philippines
- 1.20 Samoa
- 1.21 Singapore
- 1.22 Sri Lanka
- 1.23 Tonga
- 1.24 United Kingdom
- 1.25 United States
- 1.26 Zimbabwe
- 2 Similar offices in non-common law jurisdictions
- 3 References
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.
The Attorney General's of Afghanistan (AGO) is the legal advisor to the Government of Islamic Republic of Afghanistan (GIRoA). It also monitors the implementation of laws in order to promote peace and prosperity through the rule of law, and to enhance the quality of life of the Afghan people. Currently Mohammad Ishaq Aloko is the Attorney General of Islamic Republic of Afghanistan.
The AGO’s mission is to serve all of the people of Afghanistan, without discrimination, by defending the people’s right to safety and security, and ensuring fairness, impartiality, and justice when investigating and prosecuting criminality. This also requires monitoring the implementation of laws in order to promote peace and prosperity through the rule of law, and to enhance the quality of life of the Afghan people.
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. The Senator the Hon. George Brandis QC 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.
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 his role as attorney general, he is 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 police, prisons, and security agencies of the federal government.
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".
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.
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. He/She is assisted by 5 law officers, namely:
- the Solicitor General who heads the Legal Policy Division,
- the Director of Public Prosecutions who head the Prosecutions Division,
- the Law Officer (Civil Law) who heads the Civil Law Division,
- the Law Officer (International Law) who heads the International Law Division, and
- the Law Draftsman who heads the Law Drafting Division
(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.
"The Mission of the Office of the Attorney General is to provide the highest standard of professional legal services to Government, Departments and Offices."
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 Offences 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 IS Máire Whelan,
Isle of Man
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).
This is a position which existed in Jamaica for a long time.
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
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 2007, is the Honourable Titabu Tabane.
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 is Tan Sri Datuk Seri Panglima Dr. Abdul Gani Patail.
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.
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 Interim Constitution of Nepal. For a person to be eligible for the post of Attorney General, he/she also has to be qualified to be appointed as a judge of the Supreme Court.
In New Zealand, the Attorney-General is the chief law officer and primary legal advisor of the New Zealand government. 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. The Attorney-General has departmental responsibility for the Crown Law Office, the Parliamentary Counsel Office, and the Serious Fraud Office. By tradition, persons appointed to the position of Attorney-General have almost invariably 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. Cullen's appointment was controversial at the time because of his non-legal background.
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 Minister 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. It is an independent and autonomous office attached to the Department of Justice for budgetary purposes.
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. The Attorney General is defined as the "Chief Legal Advisor to Government".
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 his/her consent, and he/she has 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.
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 is due to be 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.
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.
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 to represent the government himself or herself to the Supreme Court.
The individual U.S. states and territories, as well as the Federal capital 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.
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.
In Brazil, the Attorney General of the Union (Portuguese: Advogado-Geral da União) is in charge of the legal defense of the State and of advising the President of the Republic on legal matters. The current AGU is Luís Inácio Adams.
A separate position, the Prosecutor General of the Republic (Procurador-Geral da República), is the head of the Public Prosecutor's Office (Ministério Público da União). The Prosecutor General is appointed by the President and confirmed by the Senate. The current Prosecutor General is Roberto Gurgel.
A third position, the Public Defender General, oversees Brazil's public defenders offices.
In the Dominican Republic the Procuraduría General de la República is an institution belonging to the executive branch that is responsible for representing the Dominican State in courts of law, defending public interest, assuring respect for the due process of law and overseeing penitentiaries in the Republic.
The Attorney General of Indonesia is responsible to advise the Government about law problems. The Attorney General is also a Solicitor General. So, the Attorney General can represent the Government in the Supreme Court. The current Attorney General of Indonesia is Basrief Arief.
In Italy there is no strict equivalent of an Attorney General, and all comparisons risk being misleading due to the differences in the constitutional and legal systems. The very approximate equivalent of an U.S. A-G would be the Ministro della Giustizia, who is a member of the government and head of the Italian Department of Justice. Also the English A-G has no direct equivalent, as the function of legal adviser to the government does not exist as such, and we find part of its responsibilities in the Avvocato Generale dello Stato, who is in charge of representing the State in any civil, criminal or administrative lawsuit, but not in charge of prosecution. Prosecution in Italy enjoys constitutional independence from the Government, and is entrusted to a district attorney, the Procuratore della Repubblica (one for every ordinary court ), the Procuratore Generale (every Court of Appeal), the Procuratore Distrettuale Antimafia, the Procuratore Generale (Court of Cassation) and the Procura Nazionale Antimafia.
In Mexico the Procuraduría General de la República is an institution belonging to the federal executive branch that is responsible for the investigation and prosecution of federal crimes.
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 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.
Dutch attorneys-general do not normally advise the government.
In Serbia is called Public Attorney of the Republic of Serbia. It's the person who represents the state's authorities in the courts and administrative bodies, and advises the government in civil law matters. Crimes and offences are prosecuted by Public Prosecutor.
In Spain is called Fiscalía General or Ministerio Fiscal
- Office of the Attorney General (Fiji), official website.
- "Role of the Attorney-General", Fiji Times, January 6, 2008.
- [dead link]
- "Welcome to the Department of Justice - Republic of the Philippines | Tel: (+632) 523 8481, (+632) 523 6826". Doj.gov.ph. Retrieved 2012-05-04.
- Tait, Maggie (12 May 2008). "Customary land excluded from Samoa bill". The New Zealand Herald. Retrieved 17 September 2011.
- "Minister of Justice and Attorney General resigns", Matangi Tonga, June 1, 2009
- "Tonga's new Attorney General", Matangi Tonga, June 2, 2009
- "Attorney General of the Kingdom of Tonga", Tongan government website, March 11, 2009
- The Federative Republic of Brazil. "Structure: Attorney General of the Union (AGU)". Accessed 20 September 2013.
- Office of the Attorney General (Dominican Republic), official website.
- 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.