Former AG maintains stance on commissions of inquiry law – as current AG seeks to clarify

Justin Simon KC. Attorney General Steadroy Benjamin
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By Charminae George

[email protected]

Discussions on whether or not the Governor General has the power to call a commission of inquiry continue among the legal minds of Antigua and Barbuda. In recent weeks, there have been intensified calls for an impartial probe into the West African flights saga, which saw hundreds of Cameroonian refugees stranded in Antigua earlier this year.

The government maintains that the Governor General has no authority to call an inquiry without the advice of the Cabinet. Yesterday, in an interview with Observer, Attorney General Steadroy Benjamin sought to clarify that stance.

Benjamin claims wording in the Commissions of Inquiry Act 1880 that states it is lawful for the Governor-General “whenever he shall deem it advisable” to issue a commission is open to interpretation.

He said legal advisors were mulling the precise meaning of the words “deem it advisable”.

His comments come a day after Cabinet spokesman Lionel Hurst took aim at the former Attorney General, Justin Simon KC, who maintains that the power to call such an inquiry rests in the hands of the Governor General.

“They [legal experts] examined that law in total, and they say that persons who are not familiar with commissions of inquiry, and the laws applicable thereto, do not really give the real meaning of what is important in these types of situations,” Benjamin said.

“Many people believe that the Governor General possesses executive power, but he does not…He acts on the advice of the Cabinet, or minister appointed by the Cabinet,” he added.

Benjamin read from a document submitted by a King’s Counsel whose advice was sought on the matter which, according to him, referenced the Common Caribbean Constitutional Law, a book written by Sir Fred Phillips in 2002.

“Where the statute confers power to the GG (Governor General), those powers cannot be conferred by him in his deliberate judgment, but upon the advice of Cabinet or a minister designated by the Cabinet,” he read.

Benjamin continued, “This is in keeping with the convention that the sovereign acts on the advice on the Cabinet. The sovereign must not enter into the political arena with all that implies for a confrontation with the Cabinet and members of the opposition.”

In the post-Cabinet press briefing on Thursday, the Prime Minister’s Chief of Staff Lionel Hurst claimed Simon was incorrect in his interpretation of the legislation. He said Cabinet had sought the advice of two King’s Counsel in England who had concluded that there is no authority for the Governor General to commence the inquiry on his own.

But in a letter sent to press on Thursday night, Simon vehemently maintained his position.

“It certainly is not sufficient for the Chief of Staff in the Office of the Prime Minister to simply say that the experts have concluded that the Governor General has no such power.

“Both Ms E Ann Henry KC, and I the undersigned, would like to be informed where we went wrong in our interpretation and assessment of the relevant law. This is a matter of general public interest, and we need to know why Mr Hurst is baffled at my statements,” he wrote.

 Additionally, he called for the KCs’ legal opinions to be disclosed.

“I am and remain of the view that …the Commissions of Inquiry Act … gives the Governor General the power to act in his own deliberate discretion – and not on the advice of anyone,” Simon added.

The Commissions of Inquiry Act, Section 2, states: “It shall be lawful for the Governor General whenever he shall deem it advisable, to issue a commission appointing one or more commissioners, and authorising such commissioners… to inquire into the conduct or management of any department of the public service in Antigua and Barbuda, or of any public officer of Antigua and Barbuda, or of any parish or district thereof, or into any matter in which an inquiry would, in the opinion of the Governor General, be for the public welfare.”

Hurst told Observer last night, “A few issues of the Gazette, dating back to 1990, suggest that the authority was shifted from the GG to the Cabinet 33 years ago. We continue to look for the statutory instrument that caused the amendment/change to become law.”

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