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 (Guyana’s marathon champion Cleveland Forde), had in this Jagdeo matter, turned from High Court through the CoA at the speed of a hare (Usain Bolt’s). 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. Righteous indignation at the dismissal was expressed; innuendos swirled. Columnist Ralph Ramkarran, SC (the infamous , unsanctioned invalid Red House Lease participant) inveighed thus: “Chronicle’s Calumny And Contempt” SN January 23 2017). The learned Attorney General, Basil Williams, SC has told his side of the story in the newspaper and press conferences (latest Friday 3rd). The other side, theirs (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 organisations of Lawyers” KN Sunday 5, 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 Counsel 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 simplest 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 lie 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 bordering, in my opinion, on dereliction of duty, both the SG and DSG would treat the Jardim case, as if it were some Act of Parliament; impeachable, only on some constitutional ground. In my considered view, Jardim’s case was both distinguishable and exceptable. I challenge both the SG, and DSG (who conceded the point before the (CoA)), to lucidly and with clarity, articulate in these newspapers the reasons, IN LAW, for the CoA’s decision in Jardim’s case 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 ion 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 defects in the reasoning are palpable. First of all, it’s 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’s 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 the Jagdeo case to overrule Jardim (it could not), but such palpable defect and flaw (eg 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 self-same “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 reduction 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. So, this brings me to the per incuriam exception to the stare decisis rule. I submit that the Jardim case, was decided per incuriam the provision of section 11 of the SL&PA. The duty imposed by section 11 to effect service on the Attorney General is to be interpreted as necessarily implying, that the AG is the proper party for the purpose of the SL&PA in matters against the State per se; or it’s “officers.” 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 Minister; 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. We are in the realm of public law; not private law. The term “Attorney General” appears seven (7) times in a short Act of only 24 sections. Even at the level of commonsense, such frequency must carry some not inconsiderable interpretative relevance – the drafters conceived of the AG’s role and standing as very much undiminished. The constitutional indispensability of the AG (article 112, 185) must be recognised and appreciated. So, unless the SL&PA was intended, inter alia, as a constitutional alteration (which it was not) it cannot be interpreted in a manner which appears to diminish or abridge the constitutional standing and role of the AG. For clearer words than in section 11 could not be drafted. The perincuriam exception to the stare decisis rule was invoked by Chief Justice Bollers. in the local constitutional case of Gladys Petrie V. Attorney General (1968)
The feeble, a priori position of the SG and DSG that because of the Jardim case the AG in Jagdeo’s case was not a proper party, is one that deserves criticism. The adamancy of the AG was, and is, justified.
Do they not know that the AG generally (and in this Jagdeo case) has, and had a DUAL JURISDICTION: (1) a sole and exclusive constitutional jurisdiction to secure the enforcement with the aid of the civil courts, of our criminal laws; (this I call the LITIGANT jurisdiction) (2) both a constitutional, and, a statutory duty (under the SL&PA) to represent a Government “officer”, ex officio,
Besides, given the considerable social sensitivity of this matter, the AG might have conceived it his constitutional duty to invoke his LITIGANT jurisdiction, for in Thomas Fuller’s famous exposition: “Be ye never so high, the law is above you.” With the status of Mr Jagdeo as former President, and the Constitution’s limpid intolerance for racial hostility (article 227), the Jagdeo case has all the elements to bring it within “the most exceptional cases” class. (see Gouriet). So, the AG could intervene to ensure that a private criminal Information laid against Mr Jagdeo (by Mr Christopher Ram) was not thwarted or frustrated in the preliminary inquiry (PI) by some adverse ruling by Singh, J. in the High court, caused by lack of proper legal representation; and if the AG had that constitutional role and standing before Singh, J., it persisted and continued in the CoA by necessary implication of constitutional law.. The startling paradox of this matter, is that it being a PWs application (prohibiton) before Singh, J. even if one applies the Jamaican Ministry of Foreign Affairs V. Vehicles And Supplies Ltd case applied by the CoA in the Jardim case as one of the reasons for its decision, the AG is still on good grounds because that case by deduction, can be taken as deciding that in PWs application, (a distinction existed in that case between PWs and “civil proceedings”) the AG can be a proper party since on the reasoning in that case Pws application is not “civil proceeding” so as to bring it within the purview of the SL&PA! The SL&PA has preserved and not dispensed with, such public law incidents as the settled common-law rule of much antiquity of the AG of not only the State’s, but its officers advocate as representing the public. (as to settled practice converted into constitutional right (see the analogous Thornhill V AG of the T&T) (1981)PC) And, if this duty exists by force of constitutional law, the (SL&PA) could not be inconsistent with it, for it would be void to the extent of any such inconsistency (article 8).
So, I ask this simple, commonsense question: by what statutory authority or other law, was Magistrate Artiga the proper party. The Summary Jurisdiction (Magistrates) Act does not make Magistrates suable ex officio. The Informant, Mr Ram has, and had no standing in this civil matter, unless in a relator role (ie with the consent of the AG and on his behalf) (Gouriet case). And by law, was Magistrate Artiga obliged to self-finance her legal representation by some private lawyer? As commonsensical as these two questions may seem, they go to the very crux of this matter. And these considerations would apply with equal force to the Commissioner of Police (CoP) in the Jardim case. If Jardim was rightly decided, then it involves the proposition that any public officer ex-officio can arrogate unto himself some right to self-representation, to the exclusion of the AG, with the potential to involve the State/Government in heavy financial liability, and opprobrium. Not permitted.
If then the SL&PA was substantially concerned with liabilities in tort (recall the reasoning in the Jardim case) with the potential for impacting the public’s purse, then it is conceivable and rational that the drafters of the SL&PA would have had such over-riding public interest consideration in mind; and that is why in section 11 about “service of documents” it is provided thus: “all documents… shall in proceedings against the State be delivered at the chambers of the Attorney General …” No words can be clearer. And as every lawyer knows, service is of fundamental importance in litigation; and here, it implies a statutory duty to represent (in this instant matter, Magistrate Artiga).
And in this respect I would say, that no greater nonsense can be said, than that “State” is not to be interpreted as being its officers (alter ego) eg a CoP and Magistrate, as the case may be (see the analogous case of Collector of Land Revenue (1986) 1WLR412(PC-Statutory officer is servant of Government for the purpose of the Malaysian equivalent of our SL&PA). The Civil law of Guyana, Act Cap. 6:01 section 3(b) (introduction of English Common law in Guyana), section 22 (Royal preogatives); is also highly relevant in this matter.
I turn now to the LITIGANT jurisdiction above, whereby the AG has by constitutional law standing before a Civil court to secure the due enforcement of the criminal laws. And if the AG can for such purpose be a plaintiff, then the law would be an ass to deny an AG standing as defendant/respondent as the case may be. As I articulated above, it is this right which made the AG a proper party before Singh, J, but for the Jardim case.
The common law of England as established and settled in the seminal important case Gouriet V union of Post Office Workers and Others (1977) 3All ER 70 (HL)), is also the law of Guyana as regards the AG in public interest civil litigation, such as was before both Singh, J and the CoA. Such statutory importation was as recently as 2003 aftirmed by our CoA in Chandra Narine Doobay V. The AG (2003) 67WIR107.
A strong court of five (5) Law Lords unanimously affirmed this ancient right. Lord Wilberforce said “it is constitutional.” That law of much antiquity as finally settled by Gouriet is this: it was a fundamental principle of English law that public right could only be asserted by a civil action by the Attorney General as an officer of the Crown, representing the public. All that needs to be done to make this fundamental principle entirely applicable to Guyana is to substitute “Crown” with State/Government. And it is this sole right or power which the AG is invested with (even to the exclusion of the DPP) that finds expression when the AG intervenes (whether as Plaintiff or defendant) to secure in the civil court, the due enforcement of the criminal laws. Translated into the Jagdeo matter, that public right was to secure the enforcement of the criminal law viz-a-viz the private Information laid by Mr Ram under section 139D of the Representation of the People Act, Cap. 1:03 against Mr Jagdeo, by seeking to ensure that the PI was not wrongly prohibited by Justice Singh in Mr Jagdeo’s motion for a prerogative order of prohibition against Magistrate Artiga.
En passant, as to Mr Kissoon’s (the father of the DSG) veiled diatribic sarcasm and cynicism, coupled with gratuitous insults, I need only say that his display of such vicious paternalistic instinct, is both understandable and excusable. But were he the AG, would he have been satisfied with the feeble effort of the SG and DSG? (I recall he once was assigned the porttolio of Minister of Agriculture).
So, on this enforcement of the criminal law with the aid of the civil court ground too the Jardim case was distinguishable from the Jagdeo case. (no collateral jurisdiction issue of the AG as sole guardian of the public’s right in the enforcement of the criminal law with the aid of the civil court, – the litigant jurisdiction – as is raised by the circumstances of Jagdeo’s case vis-a-vis the PI into the criminal charge/Information), existed in Jardim’s case). And, being a jurisdictional point, it could have been taken at any point, even by the CoA of its own motion (see Gladys Petrie)
All of these are sound points, which I conceive could have been forcefully and tenaciously urged by the SG and DSG before the CoA (in pleadings, oral or written submissions, as the case may be). Were they? And if they were not, why not?
In conclusion, the standing of the AG to secure the enforcement of the criminal law in any civil court, does not depend on the niceties of pleading; his locus standi is a matter of constitutional law supplemented by statute law. It ought not to be lightly denied. And, public officers (as servants of the Government) who after all are but the indispensable alter ego of the anthropomorphic conception called the “State,” has a constitutional right of the AG, as their advocate, in civil litigation, and in public law, such status as advocate is ipso jure, the status of a proper party.
As to the other contentious issues of amendment (and extension of time therefor) and abuse of the process of the Court, on which the CoA also dismissed the AG’s appeal, those being issues of mixed law and fact, I express no opinion. Suffice it to say that our jurisprudence views askance litigation being decided by the niceties of pleadings, rather than merits, and that is why Parliament has invested the CoA with a plentitude and amplitude of amendatory and substitutionary powers (vide section 7 – of the Court of Appeal Act, Cap. 3:01) and that is why in the Gouriet case, leave was given by the English appellate court at its own instance, to the plaintiff to add the Attorney General as a party.
Regards
Maxwell E. Edwards