I am not in favour of it ...
Published:Sunday | July 10, 2011 | 12:00 AM
Gary Spaulding • Senior Gleaner Writer
However, separation of justice portfolio and attorney general constitutional - Nicholson
For many years, there has been a seemingly 'Siamese' quality about the justice portfolio and the attorney general's functions in Jamaica's governance system.
With few exceptions, successive administrations have conjoined the roles of both offices into a chief portfolio responsibility, invariably under the management of a legal mind who has been involved in politics.
But A.J. Nicholson, the last person to have held the all-important dual position in the People's National Party (PNP) administration, has no problem with a clinical separation of the two sets of responsibilities.
For the sake of accountability, Nicholson, the legal voice for the Opposition, however, wants the attorney general to have a place in one of the two parliamentary chambers.
In his Cabinet reshuffle announced more than a week ago, Prime Minister Bruce Golding moved to break this 'trend' by splitting the responsibilities of the two positions and placing them into the hands of two persons.
The decision to divorce the justice ministry and the attorney general portfolios by Golding was in accordance with the recommendation emanating from the report of the Manatt-Dudus commission of enquiry.
Nicholson told The Sunday Gleaner that he has no problem with the separation, but wants the person holding the post of attorney general to sit in the nation's Parliament.
Member of the Cabinet
The person holding the office of minister of justice would naturally be a member of the Cabinet, and by extension, a member of one of the two Houses of Parliament.
"I am not against the recommendation that was made by the commissioners," Nicholson told The Sunday Gleaner. "However, I am not in favour of an attorney general who is not in either House ... I am not happy with this arrangement."
Former Prime Minister Michael Manley had named Carl Rattray as his minister of justice and attorney general when he took back the reins of power in 1989, and later in the 18-year-old PNP administration, A.J. Nicholson assumed the functions.
Yet, there were occasions when this was not so.
Nicholson recalled that just after the 1972 general election, noted attorney the late Leacroft Robinson, QC, served as attorney general for a short period.
"He was neither a member of the Cabinet nor a member of Parliament of either House," Nicholson said. "That is the real precedent."
Nicholson himself was appointed attorney general after the 1993 general election, while the justice portfolio was tacked to the security ministry portfolio under K.D. Knight.
After adhering to the convention and assigning Dorothy Lighbourne to administer the twin portfolio for the better part of four years, Golding has been advised to wrest them apart.
Section 79(1) of the Constitution of Jamaica provides that there shall be an attorney general who shall be the principal legal adviser to the Government of Jamaica, and pursuant to the Crown Proceedings Act, all civil proceedings by or against the Government are instituted in the name of the attorney general.
The attorney general, who is a political appointee, carries out various functions and responsibilities, and may initiate or intervene in certain legal proceedings of a public nature.
The solicitor general, who is a civil servant appointed by the Public Service Commission (PSC), leads the support staff of the attorney general's chambers.
The Ministry of Justice has overall responsibility in the Government to deliver justice by:
Protecting the constitutional rights of citizens.
Maintaining the independence of the judicial system.
Reinforcing confidence in the legal institutions.
Carrying out law reform to effect greater social justice.
Providing means of redress when people are abused by organs of the State.
Carrying out legal directives imposed by the courts for the protection of society.
The justice ministry, therefore, coordinates the functions of the judicial institutions (courts), legal departments, and administration of the provisions of several pieces of statutes.
As it is with conjoined twins, the act of separating the two seemed almost surgical for the prime minister as he clinically searched for a new attorney general last week.
Non-political face
Ransford Braham, a non-political face out of the prestigious law firm Livingston, Levy & Alexander, has been chosen for the job.
"I wish the new appointee well, but he has a mammoth task because the entire (attorney general's) chamber has been denuded," said Nicholson.
The Manatt-Dudus commissioners failed to proffer a reason for their recommendation to separate the conventionally twinned portfolio responsibility except to say that the workload is heavy.
Lightbourne, who agreed with the recommendation to separate both sets of responsibilities, last week said that the potential of a conflict of interest was always present.
"It (separation of justice portfolio and attorney general) has happened before, but I am not in favour of it," asserted Nicholson. "Of course, the Constitution allows it ... all the Constitution says is that there shall be an attorney general."
Nicholson noted that in the Westminster system in which Jamaica operates, the system ensures that the person who holds the position of attorney general is held accountable.
"In the United Kingdom, the attorney general is a minister without Cabinet rank, but he is always a member of the House of Commons," explained Nicholson. "The reason is that if he is a member of the Cabinet, then there is some collective responsibility of the Cabinet."
Nicholson argued that there is no mechanism to which the attorney general could be held accountable if he is not a member of the Cabinet or either House.
"That is my problem. Why I say he should be in one of the Houses is the expanding of accountability - the facilitation of questions that can be asked of him or her. He must be accountable to an institution, entity, or person," declared Nicholson.
Nicholson noted that in the previous administration, former Prime Minister P.J. Patterson recommended that the director of public prosecutions (DPP) dispatch (parliamentary) reports annually. He noted that those suggestions had been recently resurrected.
Nicholson recalled that the previous DPP submitted a few, but nothing had happened since.
"If I take a cue from that, it appears to me that those persons who have been in the Government, such as Patterson, seem to understand that every entity within the government system ought to be accountable to someone or some entity, and no better entity it is than the Parliament," argued Nicholson.
Breach difficult to repair
The veteran politician suggested that the predicament faced by Golding is a result of his poor handling of the recommendation for the appointment of Stephen Vasciannie as solicitor general nearly four years ago. "That is where the thing started to go wrong, and it is going to be very difficult to repair the breach, very difficult.
"Members of the Opposition, members of civil society, trade unions, the Church, and the like, should have stood up that time. When you make those things fly, they multiply," he asserted.
Golding had refused to accept Vasciannie as the solicitor general to replace Michael Hylton, the recommendation of the PSC.
In the ensuing controversy, Golding booted the members of the PSC.
The propriety of the prime minister's action was debated in the public domain, but the resulting dispute was settled out of court.