Advice received by Attorney General John Jeremie from two international legal experts both confirm that the affidavit by Muslimeen leader Yasin Abu Bakr should not have been referred to in the recent court matter involving the Muslimeen and Government.
Jeremie yesterday tabled in the Senate copies of the advice on the issue which he had received from Jamaican legal expert Lloyd G Barnett and former Jamaican Solicitor General B. St Michael Hylton QC.
He said their advice supported the position he had taken in respect of the order of the court to produce Bakr's affidavit.
"I had criticised the order," Jeremie noted.
Last week in the Senate's budget debate, Jeremie, taking issue with comments by the Law Association on the aspects of the matter, had promised to present copies of the advice he had received on the matter.
Jeremie added, "I have today complied with my undertaking to produce these two opinions. One opinion is dated 25th September 2009 when I received it. But at the time that I gave my undertaking I had already had informal advice on the matter."
The advice submitted by Jamaican legal expert Lloyd G Barnett stated, "When a court orders an affidavit to be removed from the record on the grounds that it is scandalous, vexatious or oppressive, the effect is to destroy or nullify the public or official records of the statements contained in the affidavit,
"Any reference to the affidavit in the same or related proceedings is improper. In fact it is the duty of the Registry to destroy the affidavit because it should no longer be referred to in the pending proceedings,"
Barnett's statement also noted, "In the instant proceedings my understanding is that the trial judge was dealing with a sequel to the Court of Appeal decision which ordered the removal of the affidavit from the record. So not only was there an order of the higher court by which he was bound, but the proceedings were related."
The advice on the issue pertained to the matter between both parties which was recently adjudicated upon by High Court judge Rajendra Narine (now a Court of Appeal judge) in which the Muslimeen affidavit figured.
That document alleged a deal had been struck between the Muslimeen and members of the PNM.
The document was struck out by both the Privy Council and local Court of Appeal.
However, Narine in a further hearing of the property issue, directed that the affidavit be sent to the acting DPP and police commissioner.
QC's Advice
The advice of Hylton stated that the judge in the matter at hand should not have referred to the challenged affidavit "In the way that he did or at all," (sic). Hylton added, "The learned judge made comments and issued directions which do not relate to the present proceedings. In my opinion the learned judge should not have done so.
"It was inappropriate for him to make any reference to the challenged affidavit at all and should have treated it as never having been filed."
Hylton also cited similar cases, noting, "What is clear from this decision and others such as Rossage v Rossage is that the offending affidavit should be removed from the file or ignored by the judge, neither was done in the present case."