Attorney General John Jeremie was wrong in law to tell the House of Representatives last Monday that Justice Rajendra Narine had defied the order of the Court of Appeal and the Privy Council in sending to the DPP and the commissioner of police the affidavit of Jamaat al Muslimeen’s leader Yasin Abu Bakr.

Jeremie was also wrong to publicly rebuke Justice Narine even if he, Jeremie, didn’t agree with the judge’s decision.

This is the Law Association’s position on the attorney general’s statement to Parliament, in which he slammed Justice Narine’s decision to send Abu Bakr’s affidavit to the DPP and the CoP for investigation and wrote to the chief justice on the matter.

The Law Association said in statement yesterday that Jeremie’s ’unprecedented step of attacking the decision of a High Court judge in his statement to Parliament... ’required considered legal analysis’.

Referencing the case of Midland Bank Trust v Green (1980) 1 Ch 570, citing Jones v Trinder, Capton and Co (1918 2 Ch 7, the Association said:

’Case law establishes that a filed document may be used even after an order removing the document from the file has been made. Accordingly, the fact that the Court of Appeal and the Privy Council held that the document should be struck out and removed from the record did not preclude the use of the affidavit after the order for striking out and removal had been made,’ the association said.

’Mr Narine had jurisdiction to have directed that the contents of the affidavit be referred to the commissioner and the DPP.

’Indeed, to do otherwise would arguably be contrary to the role of a judge as the guardian of the rule of law,’ the law body added, noting that it was not unusual for judges to refer to the DPP and/or the commissioner matters which are of concern to the court for investigation.

’This is the established practice and is an important aspect of a judge’s inherent jurisdiction and duty to maintain the rule of law.’

The association also said that while it is ’open to any person to agree or disagree with the decision of Justice Narine’, the manner of expressing disagreement was important because of the inability of the judge to respond given ethical considerations. The law body quoted Noel Cox, author of Criticism of Judges by Politicians: Reflections from New Zealand, to support its position.

Cox noted that ’when politicians, lawyers or citizens publicly criticise a judge, the judge is generally precluded from responding by ethical rules.’

He went on to say that it was ’generally undesirable for a judge to respond to criticism of her or his own actions by appearing in the news media’ and ’this policy was developed to ’ensure the dignity of the administration of justice, to prevent interference with pending litigation and to reaffirm the commitment to an independent judiciary dedicated to making decisions based on facts and law as presented in court’.

Saying that such considerations underlie the ethical restrictions relating to a judge’s ability to engage in public comment, Cox noted:

’These ethical restrictions often prevent a judge from responding to criticism, even when the criticism is misinformed or unjust. Unless someone such as a law society or bar organisation representative addresses the claims, the public gets a biased view of the judge or the case at issue.’

Based on Cox’s reflections, the law body said:

’It is our considered view that the attorney general was wrong in law...to suggest to the House that Mr Justice Narine had defied the order of the Court of Appeal and the Privy Council.

’While the affidavit in question has been struck out and removed from the record, that did not preclude the learned judge, if he thought it necessary, from dealing with it in the way that he did.’

The association also corrected Jeremie’s statement to the House on the issue of the affidavit being held as ’scandalous and irrelevant, pointing out that he failed to disclose that the Privy Council, in affirming the Court of Appeal’s decision, did so on the grounds that the material contained in the affidavit was irrelevant, not scandalous, as the Appeal Court had said.

It reminded that the Privy Council stated in Paragraph 21 of its decision:

’It is on grounds of irrelevance, rather than that of any inconvenience or embarrassment to the prime minister that the board considers that the decision of the Court of Appeal should be affirmed.’

The Law Association also noted with concern that a ’sitting member of the Judicial and Legal Service Commission (JLSC) should have made public and derogatory statements concerning the decision of Mr Justice Narine.

JLSC member Jean Permanand said on the TV6 Morning Edition programme on Thursday that Justice Narine was wrong to have ordered the affidavit be sent to the DPP and the CoP since legally it does not exist.

The chief justice is chairman of the JLSC, noted the association, and if he felt the AG’s complaint had any merit, he may chose to refer it to this body or discuss it his colleagues on the commission.

And in any case, the view expressed that Abu Bakr’s affidavit did not exist legally was contrary to the case law cited, the Association said.