Reading Makay it right
October 15, 2000
By Denis Solomon
YOU would have thought that by now the newspapers would have learned not to take Basdeo Panday's statements at face value. And yet after five years of UNC duplicity the press falls straight into the trap of reporting Panday's highly selective interpretation of the Mackay report as fact, under headlines such as “Don't blame Ramesh” and “Mackay rules for Ramesh”.
It is true that the Sunday Express subsequently carried an editorial admitting that Mr Panday's summary of the report was skewed (“but only slightly so”) and that “when Mr Panday decided to ignore paragraphs [...] which support the Chief Justice”, he was just using the report to continue the Government's vendetta against the Chief Justice.
Unfortunately, the damage was already done. Far fewer people read editorials than read headlines. In any case, the editorial itself also failed to consider the report against the detailed background of the controversy.
The Mackay report emphatically does not “rule for” the Attorney General. Its overall thrust is not to be calculated from the number of paragraphs “supporting” one side or the other. Taken in the light of the situation that gave rise to it, the report can only be read as a recommendation for an autonomous department of judicial administration under the control of the judiciary.
The paragraphs quoted by the Prime Minister and slavishly echoed in the first newspaper reports indeed say that “the words and actions of the Attorney General were not attempts to undermine the independence of the judiciary but were intended by him to be conscientious discharge of his duty in respect of public expenditure....”
Mackay could hardly say anything else. But the operative word is “intended”. The question is whether the Attorney General exceeded his powers in carrying out this “intention”. From the report's references to the specific issues that embroiled the Attorney General with the Chief Justice, one can only conclude that he did.
It was never in dispute that the Constitution makes the Attorney General responsible for the administration of legal affairs (not, let it be noted, of justice) or that the executive, not the judiciary, decides on allocation of resources for judicial and all other business. These observations are merely background, and are cited by Mackay as such. Panday, and the newspapers, give them the prominence of conclusions.
The Chief Justice's complaints were not that the Attorney General was wrongly acting as the channel between judiciary and executive, but that he was arrogating to himself the right to take decisions in respect of the subjects so communicated; that he was treating the judiciary as part of his department, and thus as accountable to him.
This Mackay emphatically refutes. The Attorney General, he says, is entitled to receive any information he asks for, to enable him to discharge his responsibility to Parliament, but not on the basis of any accountability of the Judiciary to him.
The Court Executive Administrator, says the report, must take orders from the Chief Justice. This puts paid to the idea of a Chancellor responsible to the Executive that both the Attorney General and Karl Hudson-Phillips were advancing. One charge against the Attorney General was that he was demanding information from the Judiciary Department over the head of the Chief Justice, and was requiring complaints to be sent directly to him. Mackay, however, says that the Attorney General must have no role in discipline. “The Attorney General should not have responsibility for investigating or adjudicating upon complaints against judicial officers....”
The crux of the Chief Justice's complaints against the Attorney General related to finance. Here the Mackay report is at its most specific. The report says that whether funds already allocated to the judiciary can be drawn down is for the Ministry of Finance to decide. He must have no discretion in the matter.
Furthermore, the Minister of Finance should normally comply with the requests. “Unless in times of unforeseen financial stringency, we should expect that expenditure for the support of the Judiciary included in estimates approved by Parliament should be granted.” So the Ministry of Finance is to take no advice from the Attorney General.
The way the funds are used is also for the Chief Justice to decide. Part of the accusation against the Attorney General was that by assuming the right to approve requests for funds, and failing to approve them in certain instances, he was determining who should benefit from the expenditure.
The report says that any such action “amounts to an infringement of judicial independence...” and “where judicial officers are involved, for the Executive, including the Attorney General, to exercise any judgment which involved choosing the particular officers who were to have their travel costs defrayed by the State would be inappropriate”.
The case of non-judicial officers has no bearing on the independence of the Judiciary, says the report. They are not appointed by the Judicial and Legal Service Commission, but by the Public Service Commission, and the principle of judicial independence does not yield a clear answer in relation to decisions regarding drawdown of funds for their benefit. But here too the report comes down on the side of the Chief Justice. In the context of non-judicial staff, it urges the Executive to give full support to the development of the Department of Court Administration, headed by the Court Executive Administrator, who, the report says elsewhere, takes orders from the Chief Justice.
Only in the case of non-judicial officers on contract does the report give the executive (not, specifically, the Attorney General) any role. The employment of such persons, it says, “is a matter for the agreement of the Judiciary and the Cabinet”. So the Prime Minister and the Attorney General were wrong to claim, as they did, that the Cabinet must approve these appointments. Instead, Cabinet and Judiciary are equal partners and must operate by agreement.
There are also two instances in which the report raps the Attorney General over the knuckles for specific matters. The first is where it says that “where a judge is conscientiously discharging his or her duty the Executive should [...] refrain from unsympathetic criticism”.
This is an obvious reference to intemperate criticism of the judge in a recent drug case who granted a no-case submission against the State, leading the Attorney General and the Prime Minister to talk of infiltration by organised narcotics crime into the judicial system.
The second instance occurs where the report considers the Attorney General's right to full information from the Judiciary. It says that this refers only to the ways the judicial administration is performing its functions. “Matters affecting the Judiciary may be matters that are appropriately reported without publicity to the police for their investigation, and we do not mean to include any such information in the observations we have just made”.
Which means that the Attorney General had no right to claim, as he did, that the Chief Justice ought to have reported an apparent bribery attempt to him rather than to the police.
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