Page 18 - IB JAN 2017

Politics

n From Page 17 different if he had done so because he potential of being contrary to the in-
would not have triggered the second terests or wishes of the government. It
The bi election in the outer island of limb of s 95(1)(a) as he would not have became impossible for her to represent
Vaitupu became a casualty of the pro- commenced to serve his sentence. the interests of the government or any
test. Scheduled to be held on Tuesday, “Because the issue of the status of minister in the proceedings.
6 December, PM Sopoaga ruled that The Hon Apisai Ielemia was important “It is constitutionally of the highest
polling be deferred to 7 March, 2017. for the proper conduct of Parliament importance that the Attorney General
Questions however linger on whether and because, if he had vacated his seat, performs the role established by the
Sopoaga could be guilty of contempt for a bi-election would be necessary, I made Constitution for that office and only
deferring polling in Vaitupu in light of declarations that his seat had been that role.
the clear instructions of CJ Sweeney in vacated on 6 May 2016 as a result of “The practice appears to have grown
Kasim Nazeem his judgement. his having on that date commenced to up of legal officers of the Attorney
“The effect of the declaration made serve a term of imprisonment.” General’s office appearing against the
on 5 October 2016 is that a bi-election In an unprecedented ruling, Sweeney interests of the government. In my
must be held “as soon as practicable” also used his judgement to criticise the opinion, this practice is constitution-
under The Constitution s88. “It is role of Tuvalu’s acting AG in the case ally impermissible. No lawyer in the
an immediate obligation” for the re- against Ielemia. Attorney General’s office may do what
sponsible minister to issue a notice of “The paramount role of the Attorney the Attorney General herself may not
election and it is not permissible for General is to act as the chief legal ad- constitutionally do and appearing
the minister to await the occurrence of viser to the government. That means against the government or in a manner
some other event or the resolution of she is, and must always hold herself contrary to its interests is high on the
future uncertainties.” ready and available to be, the chief legal list of impermissible actions.
Ielemia had won the appeal against adviser to the Cabinet. She should not, “It is important to understand that
his conviction by the Tuvalu Magis- indeed may not, do anything antitheti- the Attorney General is not the enforcer
trates Court on abuse of office charges, cal to this paramount constitutional of standards of the government or of
but following a motion of PM Sopoaga, duty. Her ability to attend Parliament Parliament. It is not for her to ensure
the Speaker of Parliament ruled that and to speak is subject to this overrid- that Parliament or the executive do the
Ielemia was no longer qualified to con- ing duty and for the purpose of further- correct thing or even act according to her
tinue to keep his seat. Tuvalu’s acting ing its discharge. So is her obligation, view of the law. That is the responsibility
Attorney General consequently sought unless excused by the Prime Minister, of the Prime Minister and his Cabinet
a judicial review of the Speaker’s ruling, to attend Cabinet meetings. and they are answerable to the electorate
which resulted in CJ’s endorsement of “As the legal adviser to the govern- for their discharge of that responsibil-
the Speaker’s action. ment, the Attorney General has all the ity. In the course of their discharge of
“When The Hon Apisai Ielemia com- usual duties of a legal adviser. She it, they are entitled to have confidential
menced to serve his sentence on 6 May must maintain the confidence of her access to the independent legal advice
2016, he became a person who was client. She must not act contrary to of the Attorney General, but executive
then disqualified from being elected as a her client’s instructions. She must not authority and responsibility for its
member of Parliament,” wrote CJ Swee- herself, without the consent of her cli- exercise remain firmly in the hands of
ney in his judgement. “He therefore fell ent, disclose upon what subjects she the Cabinet and are not shared by the
within s96(1)(f) as a person who at has advised or what was her advice. Attorney General. She is a professional
that moment “ceases to be qualified for, These remain the privilege of the client, adviser to government and not a political
or becomes disqualified from election to to waive or not as the client chooses. player. That is the distinction between
Parliament under .. s95” and as a result “The Attorney General may not adopt the constitutional structure of Tuvalu
of s95(1) his seat became vacant. a position which makes it impossible and bodies politic where the Attorney
“This circumstance arose because for her to give her client confidential General as a minister and an elected
The Hon Apisai Ielemia did not obtain advice or which indicates to any person member of Parliament exercises ex-
an order staying his sentence of impris- other than her client what her advice ecutive power and is responsible to the
onment until after he had commenced has been. electorate for his conduct and for that of
to serve it. The result would have been “In the present case, the evidence the government.”
led in the Attorney General’s own case
Apisai Ielemia ... shows that the Attorney General gave
back in the race unsolicited advice to the Speaker and Enele Sopoaga ...
holding on tight
disclosed that unsolicited advice to all
members of Parliament. As a result,
it became impossible for confidential
advice on the same subject to be given
to Cabinet.
“The same applies to the commence-
ment of these proceedings. The Attor-
ney General adopted a public position in
which her advice to the Speaker was
disclosed to the Court and to the
parties. She became the plaintiff
in proceedings which had every

18 Islands Business, January 2017