This is my final say in the controversy involving the AG and the Solicitor General (SG) and her deputy (DSG) over the private criminal charge of former President Bharrat Jagdeo brought by Mr. Christopher Ram.
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 recognized and appreciated. The feeble, a priori position of the SG and DSG that because of the Jardim case (which is explained in my previous letter, pleased see) 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.
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 enquiry (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 Court of Appeal CoA by necessary implication of constitutional law. 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 reasoning for its decision, the AG is still on good grounds.
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 Magistrate’s 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). 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. 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. 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.
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.
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)
Maxwell E. Edwards
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