Sunday, February 25, 2018

Institutional rectitude

 The Jamal Sambury case, the issues that have arisen following the publication of letters of the former solicitor general and the intervention of the Director of Public Prosecutions (DPP), highlight equally the serious national issues and role and, function of certain critical institutions. Not least are the judiciary, the offices of the Attorney General, the DPP and the Solicitor General, the prisons and the Law Association.

The judiciary is the constitutional bulwark to protect society and, constitutional guarantees for the rule of law and the protection of the law, among others.

The Office of Attorney General exists to advise the Cabinet, and it has responsibility for the administration of legal affairs in T&T and for legal proceedings for and against the State.

The Office of Solicitor General operates within the Office of the Attorney General and is responsible for civil litigation and renders advice to the Government. The Solicitor General is appointed by the Judicial and Legal Service Commission. The Solicitor General is appointed from among persons of high calibre, integrity and legal acumen.

The post of DPP was first established in 1961. The DPP is responsible for criminal prosecution and proceedings and gives advice and direction to the police. The unanimous Court of Appeal judgment in the Seeromanie Maraj-Naraynsingh case is recent testimony to the seminal constitutional wisdom of creating the office of DPP: “...there was no provision for a DPP in the Independence (1962) constitution. Following the social and political upheavals of the early 1970s and accusations that the Attorney General had too much power which had been exercised in an oppressive way, the office of DPP was reintroduced in the Republican (1976) constitution. The idea behind giving the DPP a separate constitutional role is to insulate the prosecutorial process from political interference.”

The prisons system is responsible for the safe incarceration of persons either sentenced to a term of imprisonment or, who are on remand awaiting trial. 

The Law Association is created by the Legal Profession Act. Among others, its purposes are to (i) protect and assist the public in all matters relating to the law; (ii) promote, maintain and support the administration of justice and the rule of law. It is self-regulatory, with its own disciplinary committee.

The August 30, 2013 letter of the Solicitor General expressed grave concern about activities which had come to her attention. She wrote directly to the Prime Minister, calling for an investigation. The concerns: possibilities of “breaches of professional ethics” by attorneys, possible activities of “key office holders”, which “may have the effect of perverting the course of justice”, possibilities of “severe implications for national security”. She gave to the Prime Minister her “...recommendation that the circumstances outlined above should be the subject of investigation by the Inspector of Prisons, the Law Association and the Police Service. Information on each of the three main circumstances outlined above can be provided by Civil Law Department of attorneys whose names I can supply on request.”

The Prime Minister referred that August 30 letter to the Attorney General. A meeting occurred between the Solicitor General and the Attorney General. Following, in October 2013, the Solicitor General again wrote to the Prime Minister. She reiterated her call: “that there is need for the type of investigation that would include not only interviews with defence attorneys but would also take into account the views of the State attorney and Prison Officers.” She thereafter resigned. It remains to be ascertained what, if any, investigation has been conducted and by whom.

In February, 2014 Master Patricia Sobion-Awai delivered a written judgment in the Jamal Sambury matter. Eschewing the usual conservative language of judges, she recorded her concerns in strong terms; the conduct of litigation before her was “dishonest and an abuse of the process of the court...this is a matter for concern. What occurred in this case calls for an investigation of some sort to determine where responsibilities lie and what action can be taken to prevent future abuses of this type.” A Master is a member of the higher judiciary. Appointed by the Judicial and Legal Services Commission as judicial officers of high calibre, integrity and legal acumen, masters go on to become judges of the Supreme Court. In the same case, that very month, a panel of three senior respected judges of the  Court of Appeal stated: “we agree.... that this type of conduct raises serious questions and does interfere with the proper administration of justice...”.

This summarises a litany of grave concerns all uttered by holders of high constitutional office over the possibility of perversion of the course of justice, abuse of the process of the court system and breaches of professional ethics by attorneys. 

The Prison Officers Association has repeatedly called for an investigation. It eventually caught the attention of the Council of the Law Association, which echoed a call for an investigation. It is reported that certain attorneys have been referred to the disciplinary committee; the language of the section of the legislation under which the referral was made is obtuse. The question remains to be resolved whether that referral actually starts any process. Guidance will necessarily have to be sought from the Law Association president.

The DPP has now intervened; he has directed a criminal investigation to commence in respect of possible offences of criminal conspiracy to defraud the State. A conspiracy necessarily involves more than one person, named or unnamed. Except for “ethical considerations”, left to the self-regulating Law Association “there is more than sufficient material warrant an investigation” to commence “immediately”. Whilst the investigation into this criminal conspiracy proceeds, persons who might be implicated are entitled to refuse to answer questions to other inquiries. To protect themselves from self-incrimination they are not compelled to answer questions other than from the police.

The erosion of confidence in the justice system cannot be underestimated. The public interest urgently requires proactive leadership for the reassurance that institutions of State are not being undermined. Attorneys and office holders want their names cleared. Inactivity is not an option. The DPP’s intervention reassures the public that there remain institutions of State and of rectitude alive to their duty. Calibrate to the Commissioner of Police and the Law Association.

• Reginald Armour is a Senior Counsel