The Scarlet Pimpernel Blog
Tuesday, 08 February 2011 06:55
By The Scarlet Pimpernel
Stones and Glass Houses- The dire need for constitutional and other fundamental legislative and administration of justice reforms in Antigua & Barbuda will be readily accepted by fair-minded observers without need for digression into pointless discussion, debate, or debacle.
Recent political litigation and quasi-legal challenges, publicized in the media, have highlighted some of the glaring inadequacies in the nation’s legal system and its underlying legislative framework. Considering the idea often touted by local politicians, that “... we are a nation of laws …,” why then is the infrastructure on which our democracy stands, negligently left in disrepair, while the political leaders, who are mostly lawyers, focus the nation's attention on the superficial, the inconsequential, and the mundane.
Informed Antiguans and Barbudans, with knowledge of legal systems in more urbane jurisdictions, recognize that our laws are in need of urgent revision, and view our legislative shortcomings with more than a tinge of shame and disbelief. Antigua & Barbuda is a political environment rife with finger-pointing and blaming the other side, so why then is the opposition ALP hesitant to agitate against the UPP government’s failure to undertake meaningful legislative revision and reform?
Who is ultimately responsible for leading the critically needed law revision and reform effort? The laws of Antigua & Barbuda were last revised almost 20 years ago, in 1992, while “Papa Bird” was running things. The Lester Bird government (ALP), “talked” constitutional and legislative reform for years (1995-2004), and even empanelled a constitutional reform committee, but never got beyond that point of political expediency.
During that time, the chief legal advisor and de facto Attorney General of Antigua & Barbuda was a prominent Dominican senior counsel, related to the nation’s then prime minister by marriage, and ALP attorney John Fuller, who Lester Bird recently recommended for a knighthood, was his sidekick. Without disputing whether parson has a moral right to “christen he pickney fus,” the pecuniary interests of these trusted legal advisors were attributed a much higher priority in the national spending than needed constitutional and other legislative reforms.
Juxtaposed, the two-term UPP government has promulgated a legislative agenda patently dedicated to increasing the quantity of laws on the books, with little regard for quality or clarity, meanwhile furthering a history of “the ayes have it” legislation, which makes a conundrum of statutory interpretation when tested in the courts. A significant part of this problem resides in the fact that for more than 20 years, the primary function of the solicitor general of Antigua & Barbuda has been to head the legislative drafting department, a role which has completely no relation to the office of solicitor general.
The African-born solicitor general, who possesses moderate English language proficiency and even less legal drafting skill, does the best he can, but the ultimate responsibility must be placed at the helm of the Office of the Attorney General, in the lap of a person who beyond savory political “talk”, remains oblivious to any idea of prudent law revision and reform. To impartially substantiate this criticism, let us examine the roles and functions of the attorney general of Antigua & Barbuda and evaluate performance.Appointment of the Attorney General
The first person to be called “Attorney General” was John Herbert, who was appointed as King Edward IV’s (28 April 1442 – 9 April 1483) principal law officer in 1461. Indeed, the multi-faceted functions of the attorney general have their roots in the Westminster system, and have been adopted into the derisory template document which was adopted as the Antigua & Barbuda Constitution.
Section 82 of the Antigua and Barbuda Constitution Order 1981 mandates the revocable appointment by the Governor General, of an Attorney General, “who shall be the principal legal adviser to the Government”. The political appointee must be “a citizen entitled to practi[c]e as a barrister in Antigua and Barbuda”, and by virtue of the office, becomes a member of the House of Representatives and may also be appointed Minister of Government by the Governor General in accordance with the advice of the Prime Minister.
Having gained the uncompromised confidence of his appointees, Hon Justin L Simon, QC, is required to shoulder the functions, obligations, and responsibilities of (i) Member of Parliament, (ii) Minister of Government, and (iii) principal legal adviser to the Government, in his role as Attorney General of Antigua & Barbuda. It can be gainfully argued that the work involved with any one of those roles is more than sufficient for one person. In the words of a nineteenth century English commentator, “[t]he Attorney General has to give his days to law and his nights to politics,” which I will show, is ill- advised for any young, fledgling democracy.
Moreover, the mere constitutional oddity and inherent conflicts of interest of being a politician and a member of government, and the giving of independent and impartial legal advice to the said government immediately advances one of the core contentions of this writing: all ministers of government should be elected, and the substantive position of principal legal adviser to the government should be separated from that of a political government minister and Member of Parliament.The Legislative Role of the Attorney General
The Attorney General is responsible for drafting legislation and for keeping all laws under review. The Attorney must advise the government when a bill is drafted in accordance with pertinent Cabinet directive, and after a Bill for an Act has been passed by both Houses of Parliament, it is presented to the Governor General for assent, as the Queen’s representative.The Attorney General’s Role in Litigation
The Attorney General is responsible for initiating civil cases on behalf of the state, and for defending civil cases brought against the state. The Attorney General also has the right to intervene in cases involving issues of constitutional interpretation and extradition, and may be required to answer questions in Parliament with respect to laws and cases involving the state.The Attorney General’s Role as Adviser
As the principal legal adviser to the government, the Attorney General provides legal advice to the Cabinet, orally, by written opinion, legal comments, and endorsement or disapproval of the advice of others. The Attorney General is also responsible to approve legal documents on behalf of the state, submitted by ministries, and statutory bodies; in short, he has the final word of legal advice within the whole executive branch.Breach of Fiduciary Duty/ Legal Malpractice
Of the aforementioned responsibilities of the Attorney General, I want to avoid his political duties and focus on his constitutional obligation to provide sound legal advice to the government. I contend that negligent failure by the Attorney General to properly advise the government can be reasonably viewed as a breach of his fiduciary responsibility, and grounds to establish the offense of legal malpractice.
Legal malpractice may occur in any area of the law, and takes place when a lawyer’s negligence causes the client (government) an economic loss. Clients and governments trust attorneys to exercise a high level of legal acumen and ethical principles when fighting for the best interest of their clients, thus lawyers are expected to work with the “standard of care” that any sensible lawyer in a similar situation would deliver.
Failure of an attorney to deliver the expected quality of work constitutes negligence, which may present grounds for liability. For example, a contract drafting violation involving incompetent failure to include required provisions or breach of fiduciary duties, which entail an attorney failing to put the client’s interest above or in front of his or her own may give rise to culpability for legal malpractice.
To evaluate the performance of the Attorney General in this light, I will look at the negligence of the government’s principal legal adviser in the hundreds of millions of dollars spent by the UPP government on constructing roads and sidewalks which are now in a terrible state of disrepair, only a short time after they were constructed.
Because the Attorney General failed in his duty to ensure competently drafted contracts for the construction of roads and sidewalks, the government has suffered economic loss in having to find millions of dollars to repair roads and sidewalks that were obviously defectively constructed. Without further evidence, this level of negligence establishes what the law calls a prima facie case for legal malpractice: In a nutshell, as principal legal advisor to the government, the Attorney General’s negligent breach of his duty to protect the government’s interest, was the proximate cause of the government losing tens of millions of dollars.Performance Evaluation
Even a first year law student will tell you that the construction contracts for roads and sidewalks signed by the government of Antigua & Barbuda should contain provisions to protect the government from having to shoulder the bill to repair defectively constructed roads. Moreover, these contracts should provide the government a “guarantee” for at least 10 years for asphalt roads and 20 years for concrete roads, where any repairs needed during the “guarantee period” would be the responsibility of the construction company.
In fact, competently drafted construction contracts should provide for withholding payment of between five and ten percent of the contract price, for a period of at least one year after the construction is completed, as a further protection against defective construction. Even junior lawyers put these provisions in all types of construction contracts to protect their clients’ interests, so I am sure that a senior queen’s counsel like the Hon Justin L Simon is well aware of his legal obligations in similar circumstances, to protect the interest of the Government of Antigua & Barbuda.
Further elaboration may give the mistaken impression that my purpose is to besmirch, so I digress, except to summarize that the same kind of negligence that amounts to legal malpractice is evidenced in the Attorney General’s negligent failure to protect the interest of the people and Government of Antigua & Barbuda, with respect to the unfinished car park (another incompetent construction contract), the high interest Half Moon Bay settlement (incompetent negotiation), the giveaway sale of the Royal Antiguan Hotel (accessory to corruption), the overpriced purchases of government buildings (accessory to corruption), and “if we build it they will come” housing projects at Follies and North Sound (incompetent advice); the list goes on and on and on.Final Grade
This cursory examination of the Attorney General’s performance as the government’s principal legal advisor establishes a prima facie case of legal malpractice (negligence) and proves that his services would be better utilized in a position in which legal acumen is not necessarily a requirement. A government’s principal legal advisor in the 21st century is required to understand much more than the law. The responsibilities of the office require excellent negotiation skills, solid knowledge of business, public administration and project financing, for starters, not just the ability to play political henchman.
The Hon Justin L Simon QC received his legal training almost a half a century ago; he is an old-school practitioner, whose political clout was derived from his marriage to Sharon Walter, daughter of the late Sir George Walter, former premier of Antigua & Barbuda. His legal status was guaranteed by three decades of membership in the local legal fraternity that bases recommendations for ascendancy on seniority as opposed to ability, knowledge, or expertise. In sum, our Attorney General is simply an old fish in a very small pond, whose negligent lapses of judgment may be attributable to male menopause.
The Scarlet Pimpernel is the nom de plume of an Antiguan born “knowledge broker” whose intercontinental exploits involve work as a university founder and educator, military strategist, international legal consultant, United States prosecutor, published author, trade advisor in Latin America and international investment counselor. The inimitable acuity of the “Pimpernel” is sought after by entrepreneurs, investors and governments from Dubai to Brazil. Recent work, created for Latin America, which speaks to the conjunction of technology and education to reduce cost, motivate students and improve testing results will be translated and introduced to school systems across
the Caribbean later this year. “Employing anonymity to domesticate the ego ...”