Sunday, December 17, 2017

Themselves to themselves


Mark Fraser

Cast in the role of confidante, the Prime Minister handled the first Donaldson-Honeywell letter with the nonchalance of a mailroom attendant. Handing the letter to the Attorney General was a bad decision, but it’s absurd to return the matter to the AG and the investigative team named. With the second letter now in the public domain any investigation of the contents of the two letters requires questioning the work of the AG, the Commissioner of Prisons and Inspector of Prisons, and the offices of the Chief State Solicitor and Solicitor General. This is the ground an investigation must cover. And it is patently absurd for the PM to require these office holders to question themselves.  

From the outset, the PM’s handling of the Donaldson-Honeywell allegations was ill-fated. The PM is the first Senior Counsel and former Attorney General to hold the office of Prime Minister. Hundreds of millions are spent by the Government annually on private lawyers for providing politicians with legal advice at their command. 

Why didn’t the PM go this route? The former Solicitor General must have had reasons for side-stepping the usual protocol and approaching the PM directly. As a former AG, the PM must surely have understood the sensitivities involved, but a grasp of context and details is not something the PM displayed. In those circumstances, the Donaldson-Honeywell letter was handled with the delicacy of a baggage handler.   

With the contents of the first letter now confirmed, recent attention has been drawn to its lack of details. But what was the purpose of the letter. 

Did Eleanor Donaldson-Honeywell intend to lay before the PM all the evidence in support of her allegations? Or did she expect to be given an opportunity to discuss her concerns with the PM? For sure, Ms Donaldson-Honeywell could not have anticipated her letter landing in the hands of the AG without as much as a polite acknowledgment from the PM or an opportunity to discuss what her letter said. Given the turn of events, the former Solicitor General’s lack of specifics may be a virtue of the letter. 

And those drawn to the paucity of the first letter have also completely ignored the alleged second letter, its timing, context, and contents. According to that letter, there were actions underway and undertakings said to be given to the former Solicitor General by the AG. On that basis lack of details was no issue. What is the state of these actions and undertakings? 

What evidence can corroborate the contents of second letter, since that letter does more than waive the PM’s further involvement? And, what mysterious turn of events caused the Solicitor General to waive the PM’s further involvement in deference to the AG’s actions and undertakings recorded in the alleged second letter, but still quit her office days after?  It is not possible to attack the first letter without considering the second. 

There were two key actions in that second letter. First, by the October 28, 2013 date of the second letter, the AG is said to have commenced action to address the concern raised about the national security risks posed by attorneys acting for and against the State in prison litigation, on which he was seeking advice from senior counsel. Six months later, and with all the public attention on the Donaldson-Honeywell letters, where is that advice? Was this something on which the AG sought the advice of deceased Senior Counsel Dana Seetahal? If not, whose advice was sought, where is it, and what changes if any were made to the way in which prison litigation is conducted? 

Second, the AG is said in the second letter to have undertaken to have the Inspector of Prisons undertake an investigation generally into prison litigation practices, including a reference to two specific incidents referred to in Ms Donaldson-Honeywell’s first letter. Six months later, where is the report on these investigations?

The Inspector of Prisons had in 2012 prepared a comprehensive report on the prisons including a section on prisoner litigation that references concerns, court findings and awards, and some of the difficulties in defending prisoner claims. 

The Inspector of Prisons was also part of the PM’s Special Prisons Committee that delivered its report on “Proposals for Early Urgently Needed Action” on November 22, 2013, three weeks after the date of the second Donaldson-Honeywell letter. Did the investigation in any way form part of the work of this committee? If not, why wasn’t it included? And if it did not form part of that work, what has happened to it? 

Even after this report of the Special Prisons Committee was laid in Parliament on December 6, 2013, the AG did the second reading of the Bail (Amendment) Bill and spoke for an hour and a half, with about 20 references to the prisons. There was no reference to the report laid earlier, to the two letters said to be written by Donaldson-Honeywell, and to the investigations that the second letter says he committed to undertake. So far, there is no information in the public domain that such a discussion took place with the Inspector of Prisons, but that may be revealed in due course. 

Then, almost six weeks after the report of the Special Prisons Committee was laid in the House and the Bail (Amendment) Bill was read for the second time in the House, the Bill had its first reading in the Senate.

For its second reading a week later, another hour was used by the AG, replete with references to the prisons, prisoners, and balancing the rights on both sides of the prison walls. Still, there was no reference to the prisons report laid on December 6, no reference to the letters and undertakings to investigate, and no reference to actual investigations. 

Ordinarily, the Donaldson-Honeywell letters would be a confidential matter in the hands of the PM. But, it’s in the full view of the public and those now named to investigate cannot be asked to investigate themselves. The absurdity should be obvious.

• Clarence Rambharat is a lawyer and a university lecturer.