On a positive note, the AG has an excellent record as a lawyer. His qualities as an illusionist are less established and he must put the anti-PNM corruption gimmicks aside and zero in on his responsibility for Section 34. This anti-PNM sideshow will not derail the Section 34 focus, but could actually jeopardise the lawsuits, permitting the "PNM financiers" to celebrate alongside those of the UNC.
But before we get to the AG's responsibility for Section 34, his contribution to the second reading of the Miscellaneous Provisions (Remand) Bill in the House of Representatives in January 2011 puts Section 34 in better light.
Though preliminary enquiries were not the subject of the Remand legislation, early in his contribution the AG told the House that, "we intend to bring a bill to abolish preliminary enquiries. If we do that we will immediately take away half of the workload of the magistrates' courts. This is an important change to the criminal procedure in the country. It is not a change that would affect substantive rights of the accused. We are simply changing the procedure and the process in the criminal justice system."
Now, 11 months before the bill for which he disclaims responsibility is laid, the AG is promoting the legislation, and assuring the House that it is simple legislation. By November 2011, disregarding the previous assurance, that bill contains Section 34 which is not a simple change to process and procedure. The Bill also gives new substantive rights to the Piarco accused, who also happen to be the AG's party's financiers, and this unfolds while the AG contemplates a related extradition appeal. What else creates a duty of honest disclosure to a Parliament in which the AG is highly regarded for his legal expertise, and relied upon for guidance on all aspects of law?
Coincidentally, the AG also says to the House, "all these cases we have had before the magistrates' courts for six, seven, eight, nine, 10 years—they have not reached a judge and jury as yet—would be cut out and could go straight to case flow, case management and then conduct the trial." The AG unwittingly stops at 10 years, 11 months before Section 34 appears in the Senate with a mysterious 10-year limitation period for non-exempt offences.
Against this backdrop, the AG now makes three claims: that the Administration of Justice (Indictable Proceedings) Act is criminal law; criminal law is not his area of expertise; and responsibility for this legislation was exclusive to the Minister of Justice.
These three assertions are incorrect.
First, the controversial legislation creates no criminal law offence, and while it deals with warrants, bail, jurisdiction and evidence, this is not core criminal law.
In any event, if this was criminal law, the AG has piloted and spoken at length on complex criminal law legislation, never indicating a lack of experience or expertise, and never suggesting the responsibility lay outside his office. Even before his appointment, the AG's newspaper articles demonstrate comfort with this area of law. A June 2009 article, "Towards swift justice", directs then AG Jeremie on the virtues of abolishing the preliminary enquiry system. And an October 2009 article titled, "A dangerous slogan", includes a reference to "Panday and the airport", and connects the administration of justice and "Political financiers and investors who, in their bid for power, made promises and accepted favours."
Further, during the period May 2010 to June 2011, when the AG suggests the Minister of Justice had exclusive responsibility for criminal legislation, the AG piloted and spoke on complex criminal legislation requiring more competence than the Act from which he distances himself. The AG piloted both the Anti-Gang and the Remand legislation, and his contributions lasted an hour apiece. These were detailed examinations of the criminal law provisions and the criminal justice system. In that contribution on the Remand legislation, the AG's impressive discourse detailed the criminal justice system, the various offences, and the administration of justice issues touched by the proposed change to the law. And, when the ex-Minister of Justice piloted the DNA legislation, the AG's contribution was another one-hour-long discourse, with the depth and detail typical of this AG.
It all points to one conclusion —that from appointment the AG has been ultimately responsible for legislation. Further, his intimate knowledge of the preliminary enquiries legislation; his assurance to the House 11 months before the bill was laid; and his deep involvement with the Piarco cases, all create unquestionable responsibility which convenience does not displace. And if the AG stuck to his claim on the 2010 assignment of criminal legislation to the Minister of Justice, that ended in June 2011.
A larger issue is that it is difficult to accept that a PM can outsource the AG's core constitutional responsibility for legislation and law, and specifically, that an AG can pick and choose the matters within the legislative agenda for which that office will accept responsibility. For sure, this AG cannot be suggesting, for example, that when ex-Minister John Sandy piloted various criminal law bills, including the Interception of Communications Act and toxin weapons legislation, he did so without the AG's intimate involvement, oversight, and ultimate responsibility. That would be fraught with constitutional problems.
And there are more problems ahead. In the height of the Section 34 scandal which likely allows the Piarco defendants to go free, there are issues with other matters in the AG's hands. With reference to lawsuits styled as breaches of fiduciary duties, the AG recently described the suits as targeted PNM litigation, a war on PNM financiers and the core of the PNM. If these statements, since repeated on a political platform, are put before a civil court, success of the lawsuits could be jeopardised. A court may well consider this to be vexatious litigation.
On the positive side, when that time comes, the AG can rely on his exceptional civil litigation record, and failing that, on his developing practice as an illusionist.
* Clarence Rambharat is a lawyer and a university lecturer