Former chief justice Sat Sharma says People’s National Movement (PNM) Senator Faris Al-Rawi is wrong to insist he is doing nothing illegal by being a witness in a case in which he is also the instructing attorney. “There was a case decision by Justice (Vashiest) Kokaram that an instructing attorney should not give evidence in a matter in which he is involved,” Sharma said yesterday. “It is a conflict of interest. It was a decision of the court. “A judge has decided it to be so and based on that Al-Rawi is wrong.”
Sharma said it was also unethical for Al-Rawi to be a witness in a case in which he was the instructing attorney. His comments come two days after Prime Minister Kamla Persad-Bissessar called on the Law Association to probe whether Al-Rawi was in breach of the Legal Profession Act by being the instructing attorney and a witness in the same case. Al-Rawi is the instructing attorney and a witness in the defamation lawsuit involving Opposition Leader Dr Keith Rowley and former attorney general Anand Ramlogan, arising out of the Section 34 matter.
Another senior legal source, who asked not to be identified, said under colonial rule a separation was made between solicitors and barristers. A solicitor acted as the instructing attorney providing information and the barrister fought the case in court. “This is how it was in the UK and how we did it here, as well,” the legal source said. “Under that English system, the solicitor was allowed to give evidence in a matter in which he was involved but a barrister could not.”
He said with the passage of the local Legal Profession Act, solicitors and barristers were united under one category of lawyers called attorneys. The legal source said the question of ethics would arise if there was a rule of conduct in the act disallowing instructing attorneys from being witnesses. He said an instructing attorney would generally go into the witness box in relation to some procedural matter or the service of a document. If it concerns other matters, it would be preferable for the instructing attorney to withdraw as a witness in the case, he said.
In response to the PM’s question, however, Al-Rawi said he was not in breach of any code. He said while the barrister who was articulating the case at the bar should never sit in the witness box, it was not unusual for the instructing attorney to do so.
Judge’s ruling
In a 2012 high court ruling, Justice Kokaram, in the matter of Hosein Construction vs 3G Technologies, said an attorney cannot be a witness in the same matter. “It is objectionable for the instructing attorney to give evidence while being an attorney on record for this party. It is a breach of rule to defy the code of ethics.”