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A file in the civil law department of the Attorney General (the AG) disappeared. As a consequence, the department failed to put in a defence in a malicious prosecution case.
This resulted in a default judgment against the State in January 2023 for sums totaling twenty million dollars.
The claimants and beneficiaries of the default judgment were nine persons who were tried for the notorious 2006 kidnap-murder of businesswoman Vindra Naipaul-Coolman and acquitted.
This was not the first multi-million dollar default judgment against the State in a civil matter, the burden of which taxpayers have to bear.
Public outrage at the time of the twenty million dollar default was high. The AG ran for the usual cover—namely the appointment of a third party to probe and make recommendations, and then wait for the outrage to die down.
Retired Court of Appeal judge, Stanley John, was engaged to investigate the disappearance of the file and identify what went wrong in the office of the AG that resulted in the State not defending the claim.
Justice John reported, but the AG refuses to release the report and is keeping it in the Government’s secretive possession.
The John report is momentous. In addition to the findings it contains on what went wrong and who should be held accountable, it has informed legislation brought to the Parliament intended to reform process and administration in the Ministry of the Attorney General and Legal Affairs.
The Senate, on Tuesday last, resumed debate on the legislation. The breadth of the legislation is reflected in the need to amend the Constitution and four other pieces of related and intertwined legislation.
The excuses for not releasing the report are curious. The AG was quoted as saying that the John Report “made grave commentary on some named persons, however, he was looking forward to systemic improvement in the future”.
(Copyright Office of the Parliament)
Pausing there, as Independent Senator Sunity Maharaj pointed out, how could one know whether the department was being systemically reformed in a sensible or credible way without measuring the proposed improvements against the contents of the John Report?
Put colloquially, the Independent Senator justifiably refused to buy “cat in bag”. I am very disappointed that the other Independent Senators chose to make such a purchase. How naive was that?
The Government also insulted the collective intelligence of the Senators by describing the new legislation as “innocuous”. As indicated, it has a broad reach across existing legislation.
By reference to the premature release of the Scott Drug report, the AG also asserted that release of the John report would render the John report “impotent”. I challenge whether that assertion is valid in an employment setting.
The analogy to the Scott Drug Report is inexact because that report would have involved the pursuit of criminal proceedings. No reference was made in this case to possible criminal conduct.
Once an employee implicated in other forms of misconduct has had the opportunity to be heard, according to accepted principles of industrial relations and Service Commission Regulations (if applicable), I doubt that the release of the John report would render disciplinary proceedings ineffective.
In treating an employee with fairness, it is common practice to seek a written response to the allegations contained in a report before action is taken on a report.
A more appropriate analogy would be the use of the type of letters that Commissioner Lynch KC in the Paria diving tragedy enquiry—prior to the release of his report—sent out to those likely to be subject to adverse findings.
Perhaps impotence in this case afflicts the human resource management of the department, if accepted industrial relations procedures leading to the accountability and the disciplinary action against employees implicated by the John report have been abandoned.
(Copyright Office of the Parliament 2023)
It may be necessary also to pursue whether keeping the John report secret is intended to protect incompetent ministers and/or their political favorites among the employees of the department at the material time.
It should be noted that the default judgment was subsequently set aside. The claimants appealed and the Court of Appeal’s decision is awaited.
Whatever the outcome, taxpayers may be saddled with the additional hefty costs of the ongoing litigation added to the cost of the probe.
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Martin G Daly SC is a prominent attorney-at-law. He is a former Independent Senator and past president of the Law Association of Trinidad and Tobago.
He is chairman of the Pat Bishop Foundation and a steelpan music enthusiast.
reasons that justify an investigation, adapted from Hill, H QC:
ensuring accountability, identifying wrongdoing, blameworthy conduct, and culpability;
learning lessons;
restoring public confidence (in a public authority or the government);
providing an opportunity for catharsis, reconciliation, and resolution;
(in some cases) developing policy or legislation to prevent similar occurrences;
To ensure the rights of those individuals involved are recognised and respected for the right reasons.
But the politicians of T&T cannot see the wood for the trees, as the saying goes.