No cross-examination of AG, lawyers insist

The Attorney General’s legal team is fighting a move to have him cross-examined in court in the lawsuit challenging the makeup of Parliament on the basis of an incomplete Senate.

The legal team has “strenuously” objected to the oral application made on Tuesday, charging that it is “premature”.

The development arose when the civil case lodged by former Attorney General Adriel Brathwaite Q.C. continued during a virtual sitting of the High Court before Madam Justice Cecily Chase Q.C.

Brathwaite is asking the court to quash President Dame Sandra Mason’s decision to reconvene Parliament. Since Parliament resumed last month, all but three of the 21 Senators have been appointed.

The lawsuit was expected to continue on Tuesday in case management with attorneys on both sides putting forward their respective arguments on preliminary points of law on issues they wanted the court to deal with.

That aspect of the case did not occur.

Instead, Brathwaite’s attorneys Garth Patterson QC, Michelle Russell and Rico Yearwood revealed that their side had been served with an affidavit which they interpreted as a response to their previous application for disclosure.

“The affidavit states that there are no documents in the possession of the President,” Patterson revealed, adding that “we are obliged to take them at face value”.

Given those circumstances, he said, there was no useful purpose to be served in pursuing the application for disclosure and asked the court for leave to cross-examine on the affidavits.

He said his team had been expecting that by the time the disclosure process was complete the Government would have “laid its cards on the table”, but that had not materialized.

The “only remaining option,” he added, was to seek to elicit from the Government, by cross-examination, the information that they should have voluntarily disclosed in the interest of assisting the court in discharging its supervisory function.

“If this court is to have any fair opportunity to critically assess the actions or omissions of the President in relation to the issues . . . in this case, there must be some substratum of fact on which the court is going to be operating.

“If the Government, through the Attorney General, has elected not to put its cards on the table, to hold the cards close to its chest, then we are entitled to invite the court to give us an opportunity to pry a few of those cards loose.

“Let’s be frank and blunt about this – the Government is not even willing to even agree to things that every blind person in Barbados is aware of. It doesn’t require any genius to understand why the three senators have not been appointed but the Government won’t even admit to that, that there are reasons and here are the reasons,” Patterson added.

But the Attorney General’s legal team, consisting of Queen’s Counsel Leslie Haynes, Roger Forde Q.C., Alrick Scott Q.C. and Gregory Nicholls, objected to the application. Other lawyers representing the Government’s interest are Simone Scott from the Attorney General’s Chambers, with instructing attorneys from the chambers of Carrington & Sealy represented by Dr Adrian Cummins Q.C., Shericka Mohammed-Cumberbatch and Jason Wilkinson.

Haynes charged that the issues of law which presented themselves in the matter “do not require the need for cross-examination”, adding that one of the issues related to the immunity clause or clauses of the President.

“So, it is alright to come here and say I want to cross-examine the Attorney General on the affidavit, but if we do that without first determining what exactly is the immunity of the President . . . then we are going to have issues in the cross-examination.

“If the authority . . . [being alluded] to as the President . . . then one must first enquire into the immunity clauses and. . . the extent to determine what cross-examination will or not be allowed.

“Therefore . . . the application being made is premature. If [this court] were to proceed with this application now without determining the parameters of the immunity clauses, then when it comes to cross-examination the questions will be objected to at each stage,” Haynes submitted.

Queen’s Counsel Forde, meantime, was adamant that Government could not be a part of the judicial review process.

“. . . . The Cabinet can be a part of the judicial review but not the Government. So the subject of this judicial review is the President, it is not the Government. The decision-maker in this case is not the Attorney General . . . . He cannot speak to the decision-making processes of the President; he can’t,” Forde told the sitting in which it was revealed that the matter would likely end up before the Caribbean Court of Justice (CCJ), Barbados’ highest court, whichever way the High Court rules.

The Attorney General’s team will continue their submissions when the matter continues on Wednesday, following which Justice Chase will give her decision on the oral application for cross-examination. fernellawedderburn@barbadostoday.bb