I VIVIDLY RECALL, when John Jeremie was slated to become
Attorney General, commenting somewhat ungraciously that I
knew little of him, and would he be any better than then AG
Glenda Morean.
Soon after that, when Jeremie became AG, he was careful to
emphasise that he considered himself a non-political AG and
operated on consensus-building.
During the last three years or so, much has transpired that
has called into question the political role of the AG, in
contrast to his non-political role.
In the Basdeo Panday appeal, Justice of Appeal Warner in her
judgment (with which JA Weekes concurred) said:
“The Attorney General has both political and non-political
functions. In performing his non-political functions, he exercises
an independent discretion, free from the influence of members
of government.”
What are the AG’s non-political functions?
In January, 2005, news of the first complaint against the
Chief Justice broke, and in February, that year, there was
talk of setting up a tribunal to hear impeachment proceedings
against the CJ.
One of the issues that arose at that time was to whom should
the initial complaint against the CJ have been made.
It was said that then acting CJ Hamel-Smith reminded the AG
and the DPP of Section 137 proceedings, and thereafter complaint
was made to the Prime Minister, who called on the CJ to account.
All sorts of allegations prevailed about political interference
on the part of the Government.
One of these was based on the fact that the DPP had made an
initial complaint to the AG, and the latter had lent him his
support in bringing the matter before the acting Chief Justice.
The second complaint against the CJ was made in April, 2006,
and again the complainant, this time the Chief Magistrate,
went to the AG.
He alleged that the CJ had attempted to influence him in favour
of Panday in the latter’s trial for breaches of the Integrity
in Public Life Act.
The AG reported the matter to the Prime Minister and the DPP.
The question that has arisen, specifically in respect of these
matters, is whether the Attorney General acted with propriety
in the circumstances, especially in those concerning the second
complaint.
The fact that the Panday appeal was allowed on the basis of
apparent bias of the Chief Magistrate has led some to even
suggest that the CM and the AG were in cahoots.
A newspaper headline proclaiming that the Appeal Court slams
AG, CM has added fuel to the fire.
Is the AG the proper party to whom complaints of this kind
should be made, given that he is a political appointee?
In 2000, the Commission of Enquiry into the Administration
of Justice heard from then CJ de la Bastide of the relationship
between the AG and the judiciary.
The commission found that the AG was, by virtue of his constitutional
role, responsible to account to Parliament for the operations
of the judiciary.
He was expected to answer any questions posed on matters before
the court and on the functioning of the courts in general
(such as delay in hearing of cases, etc).
He was the “conduit” between the executive and the
judiciary.
Thus, one would have to say that in the absence of any other
constitutional arrangements, both the DPP and the Chief Magistrate
properly made their complaints to the AG.
Since their respective complaints were against the Chairman
of the Judicial and Legal Service Commission that appointed
them, they could hardly voice their complaints to the JLSC.
Indeed, in his judgment in the Panday matter, Justice of Appeal
Archie said:
“The conduit utilised by the Chief Magistrate for registering
his complaint cannot by itself be the subject of criticism.
He would have no choice.”
Justice Warner also appreciated that the CM could properly
make his complaint to the AG.
Unanimously, therefore, the court held that it was thus not
inappropriate for the CM to have complained to the AG.
The true criticism of the AG’s actions underlying the
judgment of the Court of Appeal, therefore, lay not in his
acceptance of the complaint, but his attempt to himself investigate
the matter.
The Court of Appeal did recognise that the situation was complicated
and exacerbated by the fact that the Anti-Corruption Unit
was, by Cabinet decision of January, 2002, housed in the Ministry
of the Attorney General.
This unit had specific responsibility for investigation of
corruption in the public sector.
Possibly, the AG thought he had some function in investigating
such matters. In clarifying that he did not, the Appeal Court
questioned the wisdom of locating that unit in the AG’s
Department, in light of the charged political climate.
While the AG may be engaging in hyperbole to laud the Court
of Appeal’s judgments, the fact is that in certain important
aspects the judges do recognise that he was acting in accordance
with the current constitutional and institutional arrangements.
It is easy in hindsight, looking at the actions of the complainants
in the matters, to say what they should or should not properly
have done.
There were no precedents for any of this here or in the Commonwealth.
When we criticise the actions of the AG in particular, this
must be borne in mind.
His is the only office with conflicting political and non-political
roles. The Constitution makes no clear provision for the latter.
How these conflicts are resolved is up to the office-holder,
and when he is met with unprecedented situations, he has to
do as he thinks right.
He may be wrong. Sometimes he may be right.
