Sun | May 22, 2022

Gordon Robinson | Attorney, client, or godfather?

Published:Tuesday | January 18, 2022 | 12:06 AM

AS the PM performed his version of the Ali-Shuffle so that he could score points while we focused on his feet, his best punch was to appoint Derrick McKoy as attorney-general.

As a first-year law student, I was privileged to be taught by three top-class lecturers, namely, Dennis Morrison; the late, lamented Roy Fairclough; and Derrick McKoy. They were brilliant, humble and imparted eye-opening knowledge in simple terms. They demystified the law in ways that remain useful to me today. I’m eternally grateful.

Since then, all pursued equally significant careers, combining patriotism and excellence to make Jamaica better. So I welcome McKoy’s appointment. Because he’s neither MP nor Senator, it has fuelled discussions on governance. Regrettably, the knee-jerk oppose, oppose, oppose attitude of this new (and very different) PNP has been utterly disappointing.

PNP President, Attorney-at-Law Mark Golding:

“… this new AG will not sit in Parliament, so he cannot be held accountable to the Jamaican people. This is an unacceptable arrangement, especially at a time when the prime minister has been talking about constitutional reform.”

On a nonsense scale of 1-10, this scores a 25. When Mark the lawyer advises clients, who but clients hold him “accountable” for his advice? Sigh. Outside of Merrie Olde England, it should be clear that basic governance principles, especially in a wanna-be republic, would make roles of attorney-general/MP conflicts of duties not to mention duty and interest. In welcoming a similar appointment by Bruce Golding, I wrote ( Gleaner: “Justice For All” July 24, 2011)

Much has been published about the attorney-general’s role and whether or not he should sit in Parliament. Once again, this only exposes pundits’ confusion, exacerbated by Westminster’s obfuscatory effect, regarding how our governance structures should work towards the ideal of separation of powers. Parliament’s primary purpose (should be its only purpose) is constituency representation. Even the Senate, albeit imperfectly composed of political appointees, is itself essentially representative … .

“Accordingly, I believe the pure role of attorney-general is incompatible with him sitting in Parliament in much the same way that the role of Cabinet minister is inherently irreconcilable with that of MP.”

Role of attorney general

Good news! Jamaica’s Constitution isn’t vague about the attorney-general’s role. Chapter 5 creates and empowers Parliament but includes nothing about an attorney-general. Not. One. Word! It should be obvious to all but the most legally or politically inept that the ideal is an AG from outside of Parliament. Chapter 6 (“Executive Powers”) after knee-bending gobbledygook about Her Majesty (ugh) provides:

“Cabinet … shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible therefore to Parliament.”

And

“Cabinet shall consist of the prime minister and such number of other ministers (not being less than eleven) … as the PM may from time to time consider appropriate.”

Finally:

“There shall be an attorney-general who shall be the principal legal adviser to the Government of Jamaica.”

I shouldn’t have to tell any practising attorney that a “principal legal adviser to Government” is linguistically and practically separate from that same Government. No lawyer should also be his client (if a lawyer represents himself/herself, the client is a fool). The best civil litigators (essentially what an AG represents) insist on being treated like priests and told everything. So although it’s desirable for an AG to sit with Cabinet, an AG is NOT a Cabinet member unless also appointed a minister.

So back in 2011, I wrote:

“I consider it essential for my attorney-general to sit in Cabinet and give on-the-spot advice that might thwart egregious error before it becomes policy and also help to craft executive policy with input from his unique constitutional perspective. The constitutional presumption that the AG shouldn’t be a minister doesn’t derogate from that concept.”

So I respectfully ask Mark Golding to unambiguously tell Jamaica what he plans if he becomes PM. Will he erase this progressive move, and as the PNP did in 2012, revert to combining roles of government legal adviser with that of legislator-cum-constituency Godfather?

Peace and Love!

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.