Who is prosecuting who?
The tale of the Attorney General, the Director of National Prosecution Office and the law
The controversy arising from the case of Police v Mauga Precious Chang - or it is the Attorney General v Mauga Precious Chang? - is yet another example of the confusion in which even our system of justice is gobbled up in the confusion of the performance of the constitutional functions; duties and responsibilities of the Attorney General, and those of the Director of National Prosecution under the newly established National Prosecution Office Act 2015 (the NP Office Act).
Of course, this is the inevitable consequence of political appointments that merits not the quality and integrity of the persons appointed and their suitability for the jobs at hand, but establishes beyond doubt that accountability and transparency aside as merely one of many factors to be considered, quality alone in the honesty of the person to be appointed, and quality per se in the performance of duties and functions, outshines all others. Absent inadequate political maneuverings, these issues may not arise.
Add to these as to why it is at all required that the Attorney General appoint counsel from New Zealand, Satiu Simativa Perese to prosecute, and local advocate Helen Wallwork to act in it’s – Attorney General’s behalf – meantime; while of course, there are all those lawyers in the Office employed under his supervision and control qualified to do the job; and the Acting Director of Prosecution, Muriel Lui herself appointing Taulapapa Brenda Heather-Latu, to do that same prosecution, despite similarly many lawyers in that Office to do the same, it sure shows that that keffler here is really an exercise in power struggle, and the result of political swashbuckling that in this writer’s opinion, merits dismissal of the charges, and Director be free to do her job. I mean, the charges are incredibly minor carrying upon conviction a mere fine of not exceeding 10 penalty units, or of jail for 2 years, that to argue like these, is akin to small fishes fighting for scraps by the waves ashore. And even if the charges are proven and the Director found guilty, she is likely to be convicted and discharged, considering she is a good person, who for the first time is appearing in court, that whatever aggravating factors there are to be, it is certain the mitigating factors on the other hand shall outweigh a jail term. And looking at that power struggle in the light of this paper’s Village Voice of the people hungry and striving to move on day by day, the money to pay these LA lawyers could be well and deservedly spent for these poverty stricken Samoans …. Originally, all criminal prosecutions were the power and the responsibility of the Attorney
General under Article 41 of the Constitution. Sub-article 41(2) provided:
“ (2) The Attorney General … shall have power, exercisable in his discretion, to institute, conduct or discontinue any proceedings for an alleged offence to have been committed”.
The scope of that power was exclusive and inclusive. It encompasses even prosecution brought in the private capacity of a citizen or any person. In Te’o v Attorney General, November 2001, an unreported decision of our Court of Appeal (Barker, McKay & Robertson JJA) in which a private prosecution was “discontinued” by the then Attorney General – who incidentally and for the record, was none other than Taulapapa Brenda Heather-Latu – under Article 41(2). The issue was whether the Supreme Court was correct in holding that Article 41(2) encompasses the power to discontinue a prosecution brought by a private citizen or person, and not the Attorney General. In confirming the judgment at first instance, the Court of Appeal held, amongst others, that:
“(1) There was no justification for reading down the plain words of Article 41(2) to exclude private prosecutions from the ambit of the Attorney General’s constitutional power … “
Of course, that is the traditional understanding of the function of the Attorney General from its ancient start in English jurisprudence back in 1277. From that time to adoption of the Constitution in 1960, and political Independence in 1962, it was almost to 700 years. Now, its 739 years after. And that long history establishes that the Office is one of great constitutional impact principally in the protection and enhancement of the Executive arm of the State, rather than being a mere defender or activist of Government. Even in this technological age, that function is anciently explicit:
“The Attorney General is the chief law officer of the Executive Council. The responsibilities stemming from this role are unlike those of any other Cabinet member. The role has been referred to as “judicial-like” and as the “guardian of the public interest … There are various components of the Attorney General’s role. The Attorney General has unique responsibilities to the Crown, the courts, the Legislature and the [E]xecutive branch of government. While there are different emphases and nuances attached to these, there is a general theme throughout all the various aspects of the Attorney’s responsibilities that the office has a constitutional and traditional responsibility beyond that of a political minister”.
And these functions, roles and responsibilities are now all captured in the Attorney General’s Office Act 2013 (the AGO Act). More particularly and in respect of its traditional criminal
prosecutorial function, these are removed, and are no longer of the Attorney General’s responsibilities. Indeed, the Act has changed all, and created instead a whole new regime upon authority of Article 83(g) of the Constitution, rather than of Article 41, and more particularly its Article 41(2). Interestingly, Article 83 is Part VII of the Constitution that establishes the Public
Service of Samoa, in which by sub-Article (g), the Attorney General is exempted as not being of the “Public Service” in the sense of “the service of Samoa”. Obviously, the intention therein seems to be to take the Attorney General – not the Office of the Attorney General – outside the immediacy and complacency of governmental public service, but to procure instead greater independence and integrity, perhaps in the person that holds the office, and in the advice conferred as sought. On the other hand and considering Article 41 within the structure of the Constitution and its place as the last Article and provision of the Executive Arm of the State under Part IV of the Constitution, there is a strong argument that between the new Attorney General established under the AGO Act, itself formulated upon the exemption provision in respect of the Public Service that for all intents and purposes is further down the executive ladder of administration- the public servants of course, are the wheels that keep the Government vehicle endlessly rolling – and the Attorney General as was under Article 41, who of course was directly of the Executive function of the State, the new Attorney General and his new law, may well find himself challenged as having being created in response of the Public Service, and not of any role or function of greater constitutional validity as was under Article 41. And considering that that constitutional function under Article 41 is maintained, aside from the criminal prosecutorial role, and strengthened by Part 3 of the AGO Act, to the extend that “(e) if necessary, [the Attorney General can] instruct a lawyer in private practice to provide a legal service” (section 6(2)(e)) AGO Act 2013), it seems understood that read together with Article 41 as amended, the Attorney General is now outside of the criminal prosecution mainstream. It follows the appointment of Satiu Simativa Perese may well be unconstitutional, as the Attorney General does not have the power or authority so to appoint. And that appointment, being for “legal service”; and “legal service”, as defined by section 2 of the AGO Act as “ a legal service relating to a constitutional function, statutory function or common law function”, it is clear the Attorney General has none of these - no constitutional function to prosecute, no common law function to prosecute, and no statutory function to prosecute - the Director. It further follows that the appointment – it is not delegation - of Helen Wallwork as stand in counsel meanwhile, is also be questionable.
How do these impact on the appointment by the Acting Director of Prosecution, Muriel Lui, of Taulapala Brenda Heather-Latu, to prosecute?
The Office of the National Prosecution is now constitutionally recognized, for the first time, by Article 41A. It provides for the appointment by the Head of State, upon advice of the Prime Minister, of a person for a term of six (6) years who is qualified to be appointed a judge of the Supreme Court. And his/her functions are almost entirely discretionary, and for the purposes of this Opinion, takes over wholly from the Attorney General, the power to
“(i) institute and conduct criminal proceedings;
“(ii) take over criminal proceedings that have been instituted by another person or authority;
(iii) discontinue at any stage before judgment is delivered, criminal proceedings instituted or conducted by the Director or another person or authority;
“(4) The powers of the Director may be exercised by the Director in person or by officers subordinate to the Director, acting under and in accordance with the Director’s general or special instructions”
In addition, section 5 of the NPO Act 2015 provides for the independence of the Office of National Prosecution, in respect of these functions, and it is emphatically “not subject to the direction of any other person when carrying out [these] functions under Article 41A”. Moreover, section 6 provides even clearer and more elaborate functions in furtherance of, and “[w]ithout limiting [the functions as in] Article 41 A(3) [above]”. And particularly expressing specifically in respect of the Director per se, section 9 re-emphasizes the independence both of the holder of the Office, as well as of exercise of those functions and powers, in section 6. In other words, the criminal prosecutorial function of the Director of Public Prosecutions is much wider, and goes far beyond those originally encapsulated in Article 41, more particularly Article 41(3). In the main, the intention is obviously to make the Attorney General free of criminal proceedings in whatever level and in whatever capacity, and make the Director of Public Prosecutions the “chief prosecuting officer and advisor”. That notwithstanding, there is still room for consultation between the two. By section 14 of the NPO Act, it requires that:
“(1) The Director may, if requested by the Attorney General, consult with the Attorney General, on matters relating to the functions, duties, and powers of the Director and the Office;
“(2) The Attorney General may, if requested by the Director, consult with the Director on matters relating to the functions, duties and powers of the Attorney General”.
Obviously, these ‘consultative function’ is discretionary, as each of them sees and requires.
Inevitably however, the question necessarily arises: was there consultation between the two in respect of what is happening now? Did the AG “request” and or did the Director “request”? And in respect of removal of the Director under section 11 of the NPO Act, and the ‘designation’ of the Acting Director as had happened, was section 12 followed? That question is raised as section 12 is clear that “[t]he Director may in writing, designate, an Assistant Director to act as Director … “. And if that happened, where does it provide that the Office of the National Prosecution, and or its Acting Director, can appoint a lawyer outside of that Office to prosecute the Director, for an alleged quasi criminal offence, or more particularly, that of the traffic offence of dangerous driving causing injury?
It follows that in this paper’s view, there is no power and or authority to appoint anyone outside of the National Prosecution Office to prosecute, but that an officer of that Office could have been delegated that authority so to do: section 13 of the NP Office Act. That section is expressly clear that
“(1) The Director may delegate any functions, duties and powers of the Office or Director under this Act or any other enactment to any officer subordinate to the Director
“(2) The delegation
“(d) does not prevent the Office or the Director from carrying out any power or duty so delegated.”
In respect therefore of the appointment of Taulapapa Brenda Heather-Latu, it, like that of Satiu Simativa Perese, is arguably unconstitutional. It further follows that if the ‘consultative’ role between the Attorney General and the Director of Public Prosecution and or her designated authority under section 13 of the NP Office Act was carried out and performed, this keffle could have been avoided, and an officer under that section 13 can no doubt do the work. Otherwise, who is prosecuting who, and for what …. ?