The Attorney-General like the DPP cannot be sued for official decisions made

May 04, 2017 Letters

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Dear Editor,
I refer to my previous letter (KN, Friday, May 28) on the issue involving the AG and Judge Holder. In a nutshell, here are the credentials of an Attorney General that respectfully, Judge Holder seems very unfamiliar with. They are sui generis (ie peculiar to and special) prominent among these are (i) the sole and exclusive advocacy and litigant (locus standi) right in any civil court as representative of the State; and on behalf of the public, and, paradoxically sometimes, at the instance, and for the benefit of judges. (ii) status of nondisbarmentability (ie cannot be disbarred under the Legal Practitioners Act, cap 4:01 (“LPA”) – the necessary implication of sections 23, the exception in 35, 37). (iii) under the LPA, those judges have no power/jurisdiction to discipline under that statute the Attorney General, as they could any other Attorney – at – law, (iv) status of indispensability portfolio wise in the Cabinet (article 112), (v) (shared) custodianship of our national patrimony – civil litigation in respect thereof, now unquestionably the exclusive province of the Attorney General under the State Liability and Proceedings Act, 1984 cap. 6:05 especially sections 10 and 11.
Editor, so there can be no greater nonsense writen about the Attorney General than the pious notion of disbarment, or, the infamy of an apology (as head of the Bar to junior counsels,) as a condition of his access to the State’s court presided over by Justice Holder. Such a conditionality, portends a violation of the Constitution; and, arguably might, if executed, amount to “misbehavior” (article 197 (3)). The judge cannot be unmindful, or indifferent to such considerations.
All are sworn to uphold the Constitution. As the constitutional legal representative of the State, in civil matters, to deny the Attorney General access to the Court, is to, in point of constitutional law, purport to deny the State itself, access to its own court! For this proposition, there is a landmark decision of the Caribbean Court of Justice reported as Martin and Another V. Attorney General of Belize, (2011) 78 WIR 51 (a, MUST read for all law officers in the AG’s chambers; and I dare say, judges too). Is it conceivable that any Judge in England would have the temerity to impede England’s Attorney General’s access to the Crown’s Court. If there is any precedent of this I shall be happy to be edified.
I turn now to the libel action (as reported in both KN and SN, Sunday April 16 respective edition). The action is filed by Mr. Nandlall over the Attorney General’s alleged public comments as expressions of his legal opinion that Mr. Nandlall is wrongfully in possession of law books he acquired during his tenure as AG with public moneys and has appropriated to his own private use and benefit, since demitting that office. Since that that libel action, Mr. Nandlall has been charged. I argue, and will show in a subsequent letter how and why an IMPLIED privilege arises and exists in relation to the Attorney General by reason of his constitutional duties as to the recovery of State’s assets of which he is custodian in point of constitutional law. Duties carry correlative rights. Suffice it to say for now that, Martin’s case supra decided that an Attorney General was competent to institute civil proceedings against former government ministers for recovery of State’s assets. That case established a seminal precedent.
From the Attorney General in whom the law has vested so much guardianship for the public good (as I have adumbrated above), much proactivity and activism is expected. The common law of libel and the Defamation Act Cap. 6:03 (if there be any inconsistency) must yield to the incidents of the discharge of the Attorney General’s constitutional duty of recovery of State’s assets. The public’s interest in the recovery of state’s assets is paramount. It is all about justification and fair comment.
The libel action against an Attorney General in his official capacity is unprecedented in legal history. It is nothing but an abuse and misuse of the process of the civil court, to discourage, and frustrate the Attorney General in the discharge of his constitutional duty, as guardian of the State’s assets, to fearlessly recover by civil process, those assets which, in his professional judgment are wrongfully (criminally – larceny by bailee is one possible view; or, tortuously – misfeasance in public office is one possible view) in the possession of any one, and in this case – a former minister of government and AG. And if anyone doubts the validity of this proposition, I suggest they read and comprehend the Martin case, supra.
For, as I apprehend, our constitutional law (which is the supreme law with which no other law in this case the common law of libel and the Defamation Act Cap 6:03, can be inconsistent) would be very defective if as it does, it imposes a duty of guardianship or custodianship of State assets on the Attorney General, implicit in which is a right of professional judgment, justly arrived at and entertained, as to whether State’s/public assets have been, or are being, wrongfully misappropriated, and yet at the same time, preclude publication of that opinion/judgment to his client – the public. The law cannot be so defective. Publication has various modus aperandi. The Attorney General is, and must be on the same constitutional footing as the DPP against whom it is unthinkable that libel action would be taken, in respect of any professional judgment that Mr. X or Y has committed a criminal offence.
Maxwell Edwards
Attorney-at-Law

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