Solicitor-General and deputy cannot absolve themselves from blame

Feb 11, 2017 Letters

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Dear Editor,
I refer to my letter of February 7 in support of the Attorney-General’s position with regards to the private criminal charges against Bharrat Jagdeo.
I challenge both the Solicitor-General (SG) and her deputy (DSG) (who conceded the point before the Court of Appeal (CoA), to lucidly and with clarity, articulate in these newspapers the reasons, IN LAW, for the CoA’s decision in Jardim’s case which I cited in my previous letter (please see) that the AG was not a proper party, within the State Liability and Proceedings, Act, 1984 (the SL&PA). (Lawyers call such reasons the ratio decidendi of the case).
It is such ratio which binds. And unless therefore you have comprehended the true basis on which the decision rested you are in no position to cogitate as to whether to take it as binding; or not. For brevity, and unless further elucidation in rebuttal becomes necessary, my understanding of the ratio/rationes decidendi in the Jardim case is this: the SL&PA is not concerned with prerogative writs/orders; but with civil proceedings on tort and where the application is for prerogative orders of certiorari and mandamus, it did not come within the SL&PA, accordingly the Attorney General was not a party (see especially at pages 105j to 106a of the report).
But the flaws and defect in the reasoning are palpable.
First of all its linchpin, the “Crown Office Rules, 1906 – are subsidiary legislation (SL) and are invalid as being inconsistent with the SL&PA as no SL can be inconsistent with any Act (section 20(1)(b) of IGCA Cap 2:01 which has the force of constitutional law). Plainly, in its simple formula of “civil proceedings” the SL&PA was not intending to make any distinction at all between prerogative writs/orders and civil proceedings as is the statutory position with the English Crown Proceedings Act, 1947 and the Jamaican Crown Proceedings Act. And this was not the only flaw and defects on which (as I have said) I will elucidate if rebuttal becomes necessary.
That is why (as I will show) the SG and DSG cannot, in all good consciousness, absolve themselves from any liability or blame in this matter. As the SG and DSG attempt to explain away their failure of duty to have represented the AG with all the legal tools and devices (constitutional law arguments; distinguishing and per incuriam arguments), they give, in my opinion, an impression of interns on attachment at the AG Chambers, intimidatable, and intimidated by the Jardim case precedent; rather than the SG and DSG appointed and paid commensurately with the high expectations and responsibilities of expertise that attaches to both offices.
Of course, they could not have invited the CoA in Jagdeo case to overrule Jardim (it could not) but such palpable defect and flaw (e.g. the one pointed out above) ought to have put both on notice that Jardim was not “unassailable” and there were good and substantial grounds on which the CCJ could be invited, on further appeal, to overrule it as it had the seminal effect of jurisdictionally disabling the AG from being a proper party when he otherwise would be a competent and proper party, in representation of government officers ex officio, prerogative application, or otherwise.
It is difficult to understand why, and how, the SL&PA concerned as it is to still preserve the state’s and its “officer”s immunity from coercive remedies such as injunction and specific performance, by providing for and limiting the court to grant declaration orders only, would contemporaneously, render the selfsame “officers” susceptible and vulnerable to an equally coercive set of remedies such as certiorari, mandamus and prohibition (the PW’s). Such incongruity should not be ascribed to Parliament.
It appears to me to be a reductio ad absurdum (a process of reasoning which if carried forward leads to absurd consequences) yet, if Jardim was rightly decided, just such absurdity would be permitted as were the orders of certiorari and mandamus that the CoA in the Jardim case granted against the Commissioner of Police. If these were some of the considerations that caused the AG to hold a different view from that of the SG and DSG and to be “adamant” that the appeal be filed, I contend that he was right.
The point being made is that in their in-house discussions, the SG and DSG’s state of mind ought to have been that the Jardim case needed to be gotten rid of as an anti-government/AG decision; but that until such an opportunity presented itself in the CCJ, other legal tools and devices such as distinguishing and per incuriam if, available, had to be employed. I interpret the SL&PA as intending that while it has given citizens a right to sue (used in its widest connotation) the state/officers without the consent of the Minster; it has at the same time preserved and maintained the standing of the AG in these matters as the person ex officio to sue and be sued. I will have more to say later.
Maxwell E. Edwards
Attorney-at-Law

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