Collective Responsibility means all ministers culpable

Incomprehensibly (unbelievably) incompetent or diabolically deceptive, in part or in whole, is the conclusion arrived at having heard from Prime Minister Kamla Persad-Bissessar as to how and why her cabinet went about the task of having Section 34 of the Administration of Justice (Indictable Offences) Act prematurely and partially proclaimed.

The crux of the PM’s explanation placed complete blame on Justice Minister Herbert Volney for misleading the Cabinet by saying that the CJ and the DPP were in agreement with the early and partial proclamation of 34. That amounted to “a serious misrepresentation…material non-disclosure of relevant facts which effectively prevented it (Cabinet) from making an informed decision.”

But what of the Collective Cabinet Responsibility doctrine: How should ministers undertake that responsibility knowing they shall be held accountable for decisions taken collectively? Surely it cannot be that they blindly accept what comes before them. In this instance, they were all aware that Minister Volney on behalf of the Government had given the assurance to the Parliament that the legislation would only be proclaimed after the infrastructure to facilitate the operation of the act was in place.

Against this background they had every right and responsibility to find out from their colleague about the implementation of the rules, the recruitment of the Masters, the construction of the court houses and the promise that the legislation would be taken back for review by the Parliament. The Prime Minister said not one word on this breaking of the commitment.

The attorneys in the cabinet should most assuredly have found out why the passage of Section 34 was a forerunner to complete proclamation. The DPP called it an “absurdity”; in his mind it was not needed as part of the requirement for the smooth transition mentioned by Volney’s note. That 34 has been repealed is evidence there was never a need for its proclamation.

“Collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached,” states a Research Paper from the Library of the House of Commons, November 2004.

Indeed, cabinet governance on behalf of the population requires vigorous interrogation and discussion on matters before all are committed. As evidence of the rigour required before Cabinet Responsibility can be accepted, ministerial notes go a second time to the Cabinet before being confirmed so ministers have an opportunity to double check and reflect.

The PM’s exoneration of AG Ramlogan, the legal adviser to the Cabinet, is based on him being out of the country between July 20 and August 4. By her own statement, the note for Cabinet was tabled on August 6, two days after AG Ramlogan was back. It has been reported that the note went to Cabinet on the 9th and 16th of August and the law became effective on August 31.

Was Ramlogan in attendance at those meetings and was he on the job when the act was proclaimed? If so, what then is the basis for exoneration of the AG? Incidentally, the doctrine of Collective Cabinet Responsibility applies “even when a minister had no part in the discussion, but to which he subsequently gave tacit approval by continuing in office,” ibid.

In a detailed exploration of the responsibility of AG Ramlogan, David Abdulah and the MSJ reminded that in December 2011, the AG, having decided against appealing the ruling of Justice Boodoosingh that the two should be tried here, gave the assurance that the case would be brought to trial expeditiously; yet (incomprehensibly) eight months later Ramlogan agreed to the passage of a law that would dismiss the charges against the Piarco duo.

A trial judge would ask the attorneys in such a case to help him/her understand this matter; much more for a non-legal scribe: it simply makes no sense to me. But even if he were not present at the relevant cabinet meeting/s, AG Ramlogan had opportunity to review cabinet notes and as legal adviser to the Cabinet point out the discrepancy in which he was intimately involved as demonstrated by the MSJ statement.

It is incomprehensible that with the AG and the PM, SC, and several other well-practiced and experienced attorneys, it required the intervention of the DPP to point out the “unintended consequences” of 34 and the absurdity of its premature and partial proclamation.

Notwithstanding being briefed by the DPP on the absurdity of the proclamation, the Government adopted a “wrong and strong” attitude in the debate on the repeal of 34, scathing, liberally, blaming all in sight (knowing the mischief was internal) and spewing vitriol against the President of the Republic and an Anglican Dean who dared to be critical of the handling of Section 34.

Clearly, the hope was to ride this one out and that guided the actions and statements of the Government until reality set in: the media were not moving on and the demonstration showed that this is not a party-to-party matter; the national community wants the truth.