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Feb 19, 2017 Letters
Dear Editor,
I refer to a letter of mine published in the Kaieteur News of Thursday, February 16, 2017 under the caption “The role of the Attorney General in the legal matrix of Guyana” which completes my two previous letters of Wednesday February 8, 2017 under the caption “In support of the Attorney-General in the Jagdeo case”’ and Saturday, February 11, 2017 under the caption “Solicitor-General and deputy cannot absolve themselves from blame”. Without questioning your editorial right as to what gets published, certain crucial aspects were edited out resulting in the letter missing some points I am interested in getting over, beginning with the words “General as an officer of the Crown, representing the public….” so I crave your tolerance in publishing this letter as an addendum to the letter of Thursday, February 16.
Editor, the litigant jurisdiction of the AG in the legal matrix of Guyana in the context of the AG’s constitutional duty to enforce the criminal law with the aid of the civil court, in a fit case, is one that was poignantly invokable, and invoked, (even if unwittingly) in the Jagdeo matter.
This litigant jurisdiction of an Attorney General in Common Law legal system such as ours, has since ancient times been the Common Law position in England; and was imported as part of our jurisprudence. It was an “existing law” when the 1980 Constitution came into force on 6th October, 1980. As an existing law it became by virtue of section 9 of the Constitution Act, Cap. 2:01 converted to constitutional law on 6thOctober 1980 for the purpose of the 1980 Constitution. (As to this principle of convertibility of settled common law into constitutional law see Thornhill V. AG of T&T (1981) PC.
The common law of England as regards the AG’s litigant jurisdiction was finally settled in the seminal important case Gouriet V union of Post Office Workers and Others (1977) 3All ER 70 (HL)). And statutory importation of English Common Law into Guyana was as recently as 2003 affirmed by our CoA in Chandra Narine Doobay V. The AG (2003) 67WIR107.
In the Gouriet case, even though England has no written Constitution, Lord Wilberforce in England’s House of Lords with reference to an AG’s litigant sole jurisdiction, said that – “it is constitutional”. A fortiori, must be the position with us with our written Constitution. That law 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”. Put in a nutshell, only the AG could represent the public interest in our civil court. In the Jagdeo case Singh. J was presiding in a civil court. And to be very clear, this right/duty is altogether different from the DPP’s (and private prosecutor as Mr. Ram) prosecutorial power in the criminal courts (as for example the PI conducted by Magistrate Artiga).
Translated into the Jagdeo matter, that public interest was to secure the enforcement of the criminal law vis-a-vis the private Information (i.e. the indictable charge) laid by Mr. Ram charging Mr. Jagdeo with an offence under section 139D of the Representation of the People Act, Cap. 1:03, by seeking to ensure by the AG’s appearance and arguments (by Counsel) that the Preliminary Inquiry was not wrongly prohibited by Justice Singh in the civil court in Mr. Jagdeo’s motion for a prerogative order of prohibition against Magistrate Artiga, conducting that PI.
Whatever label (be it “settled practice”, or “common law”, or “convention”) one sticks or affixes to the role of the AG, it does not change one bit the ancient jurisdictional status and standing of an Attorney General as the guardian and enforcer of the public’s right in the civil Courts. And it is this recognition in public law of the AG as a proper party that makes it routine that costs are awarded to, or against, the AG as the case maybe (never the offender). You can only award costs against a party; and that is why in private law litigation costs are NEVER awarded to, or against, the Lawyer (who is never a party). These basic jurisdictional tenets were not considered in the Jardim case. The contradistinction between public law (as obtains in this Jagdeo matter) and private law, and its incidents, cannot be stressed enough.
Maxwell E. Edwards
Attorney-at-Law
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