Dear Editor,
Mr Rex McKay SC responded to my last letter published in the press (‘The judge had to satisfy herself whether the ongoing publications in the Guyana Times posed a real danger…’ SN, November 11). Expectedly, he was even more virulent than before. Rarely, can reason survive in such venomous environs.
In his letter, Mr McKay felt it necessary to detail “the factual matrix of the case” for the “benefit of the public.” He then proceeds to essay a most jaundiced narration of personal information regarding the parties in the matter, injecting as he merrily goes along, his own invective, drawing his own biased inferences and arriving at his own prejudicial conclusions.
In so doing, learned Senior Counsel, wittingly or unwittingly, has done precisely that which the learned Judge intended to prohibit “trial by newspapers” and, indeed, has contradicted if not undermined, the very foundation of his entire argumentation.
How eminent Senior Counsel could have made such a rudimentary blunder is indeed mind boggling.
Notably learned Senior Counsel finally concedes that the order of the learned Judge was made in Chambers and in his absence. The contention that I was not there and therefore ought not to comment upon the said order is simply devoid of any logic.
The assertion of mine that the Attorney General is the protector of the public’s interest and defender of the constitution has caused Mr McKay some unusual disquiet. He referred to it once in his first letter and twice in his second. At first, I thought it was inspired by vitriol. But after its emphatic return in the second letter, I realize that there may be a genuine case of unfamiliarity with the concept. It would be simply wrong for me not to shed some light where such darkness abounds.
The role, functions and responsibilities of an Attorney General in a legal system like ours, is the subject of discussion by many text writers and the dicta of numerous decided cases. I will refer to only a few. In the Belizean case of Attorney General v Marin (2011) 2 LRC, the President of the Court of Appeal of Belize, posits thus at p 471: “The Attorney General as the guardian of the public rights is the person entitled to institute proceedings where a public right has been infringed.” In Gouriet v Union of Post Office Workers (1977) 3ALL ER 70 at 80 Lord Wilberforce said: “It can be properly said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney General as representing the public. In terms of the Constitutional law, the rights of the public are vested in the Crown, and Attorney General enforces them as an officer of the Crown.”
These sentiments of and concerning the Attorney-General were endorsed, upon appeal, by our own Madame Justice Desiree Bernard, sitting in the Caribbean Court of Justice (see Marin v AG (2011) 5 LRC p 209 at p. 244). In De Smith, Woolf and Jowell’s Judicial Review of Administrative Actions, 5th ed (1991), the learned authors observe at para. 2-087:
“Whenever a public right is infringed or threatened with infringement the Attorney General may institute proceedings to protect the right. What exactly are the interests of the public, which may and should be protected by the Attorney General, is purely a matter for his judgment which on this question, is not subject to review by the courts. This was made clear in LCC v A-G [1902] AC 165.”
In Gouriet v Union of the Post Office Workers (1977) at p 83, Lord Wilberforce said: “That it is the exclusive right of the Attorney General to represent the public interest, even where the individuals might be interested in a larger view of the matter, it is not technical, not procedural, nor fictional. It is constitutional. I agree with Lord Westbury LC that it is also wise.”
And of even greater relevance, in the very case upon which Mr McKay has placed exceptional reliance, AG v Times Newspapers Ltd (1973) 3 ALL ER 54, Lord Reid, whose judgment was quoted, ad nauseam, by Senior Counsel, at p.59 stated: “I agree with your Lordships that the Attorney General has a right to bring before the Court any matter which he thinks may amount to contempt of court and which he considers should in the public interest be brought before the court.”
And in that very case, Lord Diplock, referring to the role of the Attorney General, enunciated:
“He is the appropriate public officer to represent the public interest in the administration of justice. In doing so he acts in constitutional theory on behalf of the Crown as “the fountain of justice” and not in the exercise of its executive functions.”
I hope those authorities shall put Mr McKay’s obvious unease to rest. The majesty of the law always reminds us that it is never too late to learn.
Mr McKay makes great weather of a statement I made that the European Court of Human Rights decision in the Times Newspapers v AG, inferentially, overturned the cases he relied upon. I was simply paraphrasing the view of the illustrious Lord Denning in his book, Due Process of the Law. For the avoidance of doubt I will set out His Lordship’s verbatim language at p.49:
“The European Court of Human Rights by a majority of 11 to 9, upheld the claim of the Sunday Times. It had a right to impart information about the Thalidomide case. Inferentially they thought that the House of Lords was wrong and that the Court of Appeal was right. Three cheers for the European Court. But what will the House of Lords do now? Will they still regard themselves as infallible?”
The reading public will decide whose opinion they wish to accept on this issue: that of Lord Denning, universally acclaimed as one of the greatest legal minds who ever lived or that of our Mr McKay, whose office, incidentally, bears the appellation ‘Denning Chambers.’
Mr McKay next accuses me of attempting to scandalize the court in my writing. It would simply be improper for me to dignify such an intemperate accusation with a response.
This will be my last retort on this matter.
Yours faithfully,
Mohabir Anil Nandlall
Attorney-General and Minister of
Legal Affairs
