By Onika James Friday, October 16 2009

Senior Counsel Douglas Mendes yesterday expressed “disappointment” that his views expressed to the President of the Law Association in relation to the direction Justice Narine gave on the Abu Bakr affidavit, “were made public.”

On Wednesday last, Martin Daly SC, in a press release quoted Douglas as saying, “ It is obvious that the Attorney General disagrees with your reading of the case law. We as lawyers are accustomed to such disagreements, and we have a code for expressing such with dignity, restraint and decorum. The Attorney General has not followed these basic principles.”

However, in a stern four-page letter yesterday, Mendes, SC, said, “I telephoned you immediately upon hearing that my views had been made public, and registered my deep disappointment that such publication could have occurred without my permission, and in breach of confidence.

“The Law Association is my trade union. It exists, among other things, for the protection and enhancement of the profession. It is therefore a place where its members should be able to express their views concerning the administration of justice with sincerity and expecting full confidence.” Mendes noted.

Mendes said, that after the Council issued its press release on September 19, 2009 stating that Justice Narine “had jurisdiction to have directed that the contents of the affidavit be referred to the Commissioner and the DPP,” he wrote to Daly, unsolicited, by letter dated 25th September 2009, and expressed the view that Justice Narine “could not order the Registrar to forward to the DPP an affidavit which the Court of Appeal had already ordered the Registrar to remove from the file. That, Mendes said, would have constituted nothing “short of countermanding the order of the Court of Appeal”.

“I expressed the further view that to the extent that the Law Association suggested that the judge was not precluded by the Court of Appeal’s order from making use of the affidavit, without making it clear that he could only use a copy of it obtained from another source, it was also wrong in my respectful view. I could have rendered this opinion in any number of public ways. However, given my involvement in the Bakr case, it would have been awkward, to say the least, for me to have done so,” Mendes added.

In addition, the Senior Counsel said, “I did not wish to take a public position in opposition to the Law Association which could lead to the undermining of its effectiveness in defence of the judiciary. Simply put, I did not wish to position myself between the Attorney General and my trade union.

Thinking nevertheless that it was incumbent upon me to express my views on an issue in respect of which I had special knowledge, I decided to exercise my right as a member of the Law Association to communicate with and advise the President of my trade union.

In all these circumstances, I was careful to make plain that my letter was being sent to you under “Private and Confidential cover. It was therefore clearly wrong of you to make any of it public without my express permission and I am frankly stunned that you have done so.”

Mendes pointed out that, “by email dated September 25, 2009,” Daly acknowledged receipt of his letter and asked him to advise ‘His President’ on “the propriety of the Attorney General calling (him) a liar in Parliament. “I replied in the terms quoted verbatim in your letter dated October 14th 2009,” Mendes said.

“It should have been obvious to you that my response was not to be made public unless you had my prior express authorisation given that I am Counsel in the litigation which has given rise to this public exchange of views.

Your request for my views was made following upon a communication from me which was headed “Private and Confidential” and was therefore also impressed with the cloak of confidence. I was communicating with you as a member of the Law Association.

Mendes further added, “My personal and professional relationship with the Attorney General, which is widely known, is such that the publication of my views about his conduct would have been particularly embarrassing for him, and compromising for me you felt constrained, “for the sake of completeness”, to publish my views on the Attorney General’s remarks only if accompanied by disclosure that I was in agreement with his position in relation to Justice Narine’ actions. The fact that it was so obviously right to publish my views adverse to the Attorney General along with those views which supported his position, is a clear indication that neither view should have been published, given that the latter was expressly communicated to you under confidential cover.

From whatever angle you look at, given the sensitive nature of the topic and the clear potential for personal and professional embarrassment, it was incumbent upon you to enquire whether I would wish to be the instrument of your counterattack on the Attorney General.

I would have expected nothing short of a phone call advising me of your intended course of action and soliciting my views.”

“Instead, at 3.16 pm you emailed me saying that you would ‘shortly’ be issuing a response to the opinions laid in Parliament making reference to my ‘two pieces of advice.’ I did not see this email until 5.40 pm at which time I immediately responded reminding you that my communication was for your eyes only.”