Dear Editor,
THE Attorney General is the custodian and guardian of our national patrimony (both land and chattel assets, excepting where statute e.g. the lands Department Act Cap 59:01; State Lands Act Cap 62:01 vests such custodianship in the President). Anil Nandlall knows this. Or, he ought to know. He was the AG during the Ramotar presidency. And yet, from that former AG there has been a repertoire of angst against the (incumbent) Attorney General, Basil Williams, S.C – inter alia from allegations about death threats to a judge, to now, a $125M libel action, that begs the question: why? Be that as it may, I argue for a shift of focus; to President Granger and the Executive power of Pardon, and the Attorney General’s proactivity or activism (or lack of) as regards his constitutional role and duty as custodian of our national patrimony (State’s assets).
First, here are my arguments in justification of a pardon.
The “Attorney General of Guyana who shall be the principal legal adviser to the government of Guyana…” (Article 112 of the Constitution) is threatened by Justice Holder with non-access to his court. The public is well aware of this standoff; a constitutional crisis is in gestation. In a previous letter (published by the Guyana Chronicle (“The AG is not guilty of contempt”, Monday, April 3, 2017) I warned of the engendering of a “constitutional crisis” and posited that “the Indians are circling the wagon,” (using an American historical metaphor) (see also a serialised publication by Kaieteur News under Captions – “Was the judge unfair to the Attorney General” – “Tuesday April 04; “An Attorney General must be shown and given respect by the Bench” – Wednesday April 05; and “Anil Nandlall is scandalizing the Attorney General” – Saturday, April 08). Ralph Ramkarran, SC. has now veildly written of “… a penalty as severe as disbarment” – “Drama in court” SN, Sunday, April 02; Dr. Luncheon too is circling the wagon (“Luncheon on the politics of the APNU+AFC government” – KN Thursday 13; “Double standards” – SN April 13). And of course, circling too are the Joshua Singhs (KN, Tuesday, April 18 under caption “An Appeal to President Granger for a Cabinet reshuffle”) The prime target is, of course, the Attorney General.
So, you may wonder why the President has not invoked his presidential power of pardon to abort this unwanted constitutional crisis that is in gestation. It cannot be in the public interest for it to come to full term and delivery (to use a medical analogy). This has nothing to do with independence of the judiciary. Independence of the Judiciary is no licence for judicial overreach. And besides, the Constitution itself gives the power to be used at any point in the process: prior, during or after judicial process. Mr. President,you are aware of Justice Holder’s infamous demand for an apology. So, I say with humility to President Granger: Mr. President,be like Portia, dispense Portian justice, (as in Shakespeare’s – The Merchant of Venice), render that demand nugatory; grant the Attorney General of Guyana a free PARDON. Frustrate the shyloks. Mr President, here is your authority: Article 188(1)(a) provides “The President may grant to any person concerned in… any offence under the laws of Guyana, a pardon, either free or subject to lawful conditions”. A pardon here would not amount to some tacit admission of guilt of the offence of contempt. The words “concerned in” embrace situations, as the present one, of there being no charge, but yet imputation, and insinuations and the like of an offence from the Judge’s demand; and of course the mischief of the Joshua Singhs in inciting disrepute for the Attorney General. The infamy of an apology (I will shorty explain this infamy) hangs over the Attorney General’s head like the sword of Damocles.
Here is my explanation of the infamy. It serves to enhance the justification for a pardon. The full text of justice Holder’s demand for an apology, is now public knowledge. It is quoted in Ralph Ramkarran’s column “Drama in Court”. In the judges words: “I am not prepared to sit and hear Mr. Williams as an Attorney – at – law in any matter whatsoever, unless he makes a genuine and meaningful apology to my satisfaction, in open court, both to me and to members of the bar since they too were scandalised by his despicable conduct” (emphasis all mine). This is infamy. This is nothing but naked judicial bullyism. And, against an Attorney General. What has he done to deserve this ignominy of remorse by apology under duress. And besides, is an Attorney General just a mere “Attorney – at – law”? Not at all. He is sui generis. And by, “members of the Bar”, I take the Judge to mean (as he only could have meant) those Junior Counsels present in court during that business session, most notably among them, Anil Nandlall who, with an accustomed degree of belligerence, is an unrelenting confessed public nemesis of the Attorney General. Such an apology appears to me, to be appeasing, an unapologetic junior Counsel – Anil Nandlall. Has this junior Counsel been demanded by the Judge to issue an open court apology to the Attorney General, as head of the Bar, for his notorious public “despicable” allegations made against the Attorney General. No. But, that is not all. You may wonder: is the true constitutional significance and status of an Attorney General beyond comprehension of this Judge?
In a nutshell, here are the credentials of an Attorney General that respectfully, Judge Holder seems very unfamiliar with. They are sui generis (i.e. 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 non-disbarmentability (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 written about the Attorney General than the pious notion of disbarment, or, the infamy of an apology (as head of the Bar to junior counsel,) 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 “misbehaviour” (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.
Anil’s libel suit
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. That libel action is, in law, feeble and farcical. 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 assets of which he is custodian in point of constitutional law. Duties carries 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 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 assets. The public’s interest in the recovery of state 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 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 judgement, justly arrived at and entertained, as to whether State/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 operandi.
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.
Regards
Maxwell Edwards