In support of the Attorney-General in the Jagdeo case

Feb 08, 2017 Letters

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Dear Editor,
News that the Attorney General’s appeal in former President Bharrat Jagdeo’s private criminal charge matter had been heard, so early, and dismissed by the Court of Appeal (CoA) was bound to excite considerable public interest and gossip. The wheels of justice that in civil litigation in this country would normally turn at a marathon – like snail’s pace had in this Jagdeo matter, turned from High Court through the CoA at the speed of a hare.
Besides, on a matter of such obvious considerable public interest and importance, where a Court of the best talents was desirable, the much learned Chief Justice (Ag) had not been invited to sit as the additional Judge in this Appeal. The learned Attorney General, Basil Williams, SC has told his side of the story in the newspaper and press conferences, so is the other side (see “Bharrat Jagdeo’s Attorney explains his successful court appeal” – KN Wednesday January 15, 2017) and Sita Ramlal’s “The Solicitor General says the Attorney General did not accept her advice” – KN Monday January 30 2017). Anil Nandlall, MP’s (see “The sudden death of two organizations of lawyers” KN Sunday 05, February 2017).
With accustomed pedantry, Mr. Nandlall writes: “The legal issue was a simple one. The Attorney General appealed in his own name when he was not a party in the court below… therefore the court could not have ruled in any other way but to strike out the appeal”. Editor, dealing briefly with Nandlall’s views, as I will show, there is nothing “simple” about the issues in this Jagdeo matter.
He seemingly has miscomprehended the basic distinction between public law and private law. This was not a private law matter. By appearing ex officio as he did in the Court below (as represented by Counsels assigned by him) on behalf of the Magistrate ex officio the AG was in point of constitutional law a party to the litigation. And if Mr. Nandlall thinks that striking out is the most routine and most simple of judicial functions, he should read Three Rivers (2001) H.L
As I will show, the Jardim case on which much reliance is placed was not only distinguishable; but decided per incuriam, so it cannot, and ought not, to have been considered as an authority for a view that the Appeal had no real prospect of succeeding and was bound to fail.
After careful consideration of this matter, and even as I hold no brief for the AG, I am driven to the conclusion that on the main issue in the Appeal of whether the AG was a competent and proper party, there are good and sound reasons, in law, why the CoA should have ruled in favour of the AG (rather than as it did against the AG) on that proper party issue. It is a locus standi point; one of pure law that as I will show involved constitutional jurisdiction issue of fundamental importance. By this letter, I hope to stir and provoke scholarly (not diatribic) public debate, on this point. For brevity I will refer to the CoA decision in the Jagdeo matter as (the “Jagdeo case”); and the previous CoA decision in a case reported as Attorney General V. Jardim (claude) (2003) 67 WIR 100 as (the “Jardim case”).
Editor, this particular passage in the Solicitor General’s (SG’s) letter (supra) is instructive: “… I then went to the Honourable Attorney General and advised that he could not be a party to the action for the very same reasons stated by Mr. Mursaline Bacchus in his letter published … the Honourable Attorney General was adamant and instructed me to sign and file the Appeal. This was done”. This letter suggests to me (as an officious bystander) how the battle lines were drawn in this Jagdeo matter.
The learned AG (and presumably Mr. Christopher Ram) on one side, the SG and the DSG and Mr. Jagdeo’s lawyer, on the other side. Counsel Bacchus’ (as Mr. Jagdeo’s lawyer) approach is above criticism. But, the rule of stare decisis (ie abide by and follow your own previous decision on a point of law) in our CoA (now an intermediate Court as appeals lies to the CCJ), and in particular the principles of (i) distinguishing; and (ii) the per incuriam exception to the stare decisis rule that our CoA is now bound by its own previous decision (in this instance, the Jardim case) on a POINT OF LAW. (I repeat, on a point of law) ought to have been the focus, with predatory instinct, of the SG and DSG, (as lawyers constitutionally representing the AG). Instead, with seeming perfunctoriness, both the SG and DSG would treat the Jardim case, as if it was some Act of Parliament; impeachable, only on some constitutional ground. I will expand in a further letter
Maxwell E. Edwards
Attorney-at-Law

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