A question that is weighing heavily on the minds of the discerning public is this—what ought an attorney general (AG) to do, if under his watch, in the circumstances surrounding the passage and proclamation of the controversial S34, there is a public outcry for his resignation? In contemplating the matter, consideration would have to be given to the role and function of the AG and the fact that the particular minister who piloted the bill and sought the early proclamation of the “offensive” section was fired as a minister and that all blame for the fiasco has been placed at his feet. In this context, I have carefully listened to the utterances of the AG on the matter and more specifically, his response to the call from various sectors of the population to resign, and might I say from the outset, that I respectfully disagree with some of the arguments that he has submitted on his own behalf to justify his refusal to vacate the post. In no way am I suggesting that the learned AG should automatically accede to the demand of those who are calling for his removal from office, for some of the calls may be coming from persons with ulterior motives and political agendas.
By the same token, the AG ought to realise that thousands of people have publicly demonstrated in support of his being fired and this is not a matter that he should dismiss lightly or treat with cavalier style. While many admire the bravery of the AG and his ability to smile through what some describe as a “rough patch”, it must be of great concern that not many legal luminaries have come to his rapid defence and so many others are remaining silent on the matter. In his defence, the AG has submitted that, “Although he is the legal adviser to the Cabinet, when we created the Ministry of Justice the criminal portfolio was assigned to that ministry and the gazetted allocation of ministerial responsibility placed criminal legislation and the reform of criminal justice system under that particular ministry.” The AG is no doubt referring to Sec 76 (2) and Sec 79 (1) of the Constitution, which have the combined effect of assigning to any minister, in this case, the Minister of Justice, “responsibility for any business of the Government of Trinidad and Tobago, including the administration of any department of Government.” In other words, the AG is stating that he should not be held liable for the actions of a minister who was assigned responsibility for a portfolio, which was previously within the domain of the AG.
This argument is certainly intellectually seductive but does it absolve the AG from his overall responsibility to ensure that all the laws passed by the Parliament have been subjected to the highest scrutiny? The office of AG has at its disposal, resources to retain the most brilliant minds and while admittedly, an attorney can never be an expert in all areas of law, surely the absence of white colour crimes from schedule 6 did not require the input of a legal genius. While I advocate that the entire Parliament must carry the blame for the omission to include white collar and other serious crimes, such as fraud, terrorism and theft in Schedule 6 of the legislation, this is a matter that should never have slipped the attention of the AG, especially since he deals with requests for extradition, which deal with serious offences not stated in the Schedule. The excuse, therefore, that he, like many others before him who held the Office of AG, came from the Civil Bar, is insufficient to negate such a glaring and obvious legislative blunder. Perhaps the argument is lost on me but I do not understand the position of the AG that the statement by Mr Manning that the latter would not have voted in favour of Sec 34 if he was present in the Parliament, amounts to vindication for the AG.
In my view, it highlights the point that Mr Manning, who is not a lawyer, acknowledges the flaw in the section, a point which was missed by all the attorneys on all sides in both Houses of Parliament. Further, the AG is quoted as saying that based on this statement by Mr Manning, “…he (Manning) has hit the nail on the head because if they (the PNM) did not vote for Section 34 there would have been nothing to proclaim.” But surely the AG is aware that his government commands the special three–fifths majority in the Lower House and in the Upper House, even if the PNM senators did not vote in favour of the Sec 34, support from some of the members of the Independent bench would have resulted in the passage of the bill with the requisite special majority. So here again, I respectfully disagree with this submission on the part of the AG to absolve himself. I know that the person who holds the Office of AG is in a permanent hot seat but such is the occupational hazard for one who carries such an important function. I end by saying that had this incident of Sec 34 occurred in the United Kingdom, it would not only be the Minister of Justice who would have been sent home.