ANIL Nandlall has, with an accustomed degree of pedantry and political rhetoric, yet again demonstrated his cognitive disability of being a learned lawyer and politician at one and the same time, and, as the good Book tells us, “No man can serve two masters at the same time…” Matthew 6. vs. 24).(“ Question of High-Level CARICOM Team usurping constitutional role and functions of GECOM doesn’t arise” SN Thursday, March 19). Whether the CPC chooses to respond or not respond is his right.
For me, at this time, in this GRE season of notable personalities with blinkered predatory instincts, in this moment (as never before) for constitutional truth to be told, and damn lies exposed, silence is not an option. And if truth be told, but for CARICOM’s involvement, more, probably the 2020 GRE, would have been completed. Instead, we have a constitutional and political hiatus.
Be that as it may, learned counsel Nandlall would have hapless, impressionable readers believe that the Constitution, and more particularly Section 22 of the Election Laws (Amendment) Act, #15/2000, has empowered GECOM to ignore and disregard the clear, unambiguous provisions of the Representation of the People Act, Cap 1:03 (ROPA), because of some “unanimous agreement”, and/or Order (if made) as proposed to be made by GECOM. His arguments are rubbish; pure legalistic nonsense. Counsel promoting the political interest of his beleaguered party even as he makes a mockery of well-settled constitutional and statutory principles, writes “…GECOM unanimously agreed to conduct the recount in the presence, and with the collaboration, of the High-Level CARICOM Team… Parliament invested in GECOM a plentitude of ominous powers reflected in Article 162(1) (b) of the Constitution, and Section 22 of The Election Law(amended) Act 2000…. Parliament clearly intended GECOM to be empowered to make almost any decision, or give any directions or correct any errors or omissions necessary… to ultimately produce a result that reflect the will of the electorate…”
Counsel further represents Section 22 as “exceptional provision”, and “these abnormal provisions were clearly intended to be activated in very exigent and extraordinary situations. One can hardly conceive a more suitable of such circumstances than which now prevails.” So, readers, what is the truth? Pausing, I instinctively observe that not even unanimity in the six GECOM Commissioners can cure a nullity; a recount as proposed is ultra vires GECOM. The constitutional and statutory truth is that there is nothing at all “ominous” “exceptional” “abnormal” about the provisions of Article 162 (1) (b) of the Constitution; and/or Section 22 of EL (A) A #15/2000. Article 162 (1) (b) does nothing more, nor less, than encapsulate the plain and obvious autonomous supervisory and or regulatory jurisdiction of GECOM as the apex electoral authority over subordinate actors (eg. POs, ROs, CEO) to ensure, foremost, “compliance with the provisions of this Constitution or of any Act of Parliament…” (I have articulated and adumbrated on this more fully in a previous recent letter under caption “The question of “Total recount” GC Wednesday, March 18; KN Wednesday March 18). In short, and paradoxically, a political MOU between President Granger and the Leader of the Opposition (however politically correct) weakens, rather than strengthens or advances GECOM’s constitutional autonomy. It is commonplace that first impressions can, upon closer, deeper analysis and examination, be found to be fallacious. The fallacy entertained by some about Article 162(1) is that it seems that the Constitution has thereby conferred on GECOM power to make subsidiary legislation thereunder. That is not so. Every draftsman knows that that is not the orthodoxy of language by which enabling subsidiary legislation power is conferred!
Be that as it may, readers, there is indeed an “ominous”, “exceptional”, “abnormal” (to use Nandlall’s epithet) provision in the Constitution. But it is not Article 162 (1) (b); IT IS ARTICLE 162 (2). Materially, it reads thus: “Notwithstanding anything to the contrary in this Constitution, if the Election Commission is satisfied… it may, by notice published in the Gazette:
(a) POSTPONE the holding of the election to a day specified in the notice;
(b) POSTPONE the voting in any area specified in the notice to a day so specified…”
Pausing, I instinctively observe that “notice” is (like order) a form of subsidiary legislation. But none of what GECOM was/ is proposing or purporting to do by its recount with CARICOM’s involvement (however nuanced) constitutes such postponement! I mention this to highlight and bring into sharp focus that whereas the Constitution, by Article 162 (2) has expressly conferred LIMITED subsidiary legislation power on GECOM to be invoked to postpone, recount is not postponement under Article 162 (2).
Turning to Section 22, it does not yield Mr. Nandlall’s cursory, flippant, perfunctory interpretation or understanding of it. Learned Counsel should be reminded that in this country, there is only ONE PARLIAMENT; that is the Parliament created by the deeply entrenched Article 51 (constituted by the President and National Assembly). Plainly, and obviously, GECOM is not a Parliament; a Parliament can amend, alter, or repeal its own Acts. (The separation of powers doctrine does not permit such an ominous, abnormal thing; and a referendum (not only some mere 2/3 vote in the National Assembly would be required to effect such a revolutionary change in our constitutional jurisprudence). GECOM is subject to Parliament, save and except as regards that extraordinary power under Article 162(2), given by the supreme law itself.
In an ingenious but feeble attempt to lend credibility to his political rhetoric, Nandlall misinterprets, or misrepresents, what is a reference to “subsidiary legislation” as if it is, and intended to be, some reference to principal legislation, i.e. an Act of Parliament, which NRA and ROPA are. Surely, learned Counsel must know the unmistakable difference; the juridical dichotomy between an Act of Parliament on the one hand, and subsidiary legislation on the other hand. They are as different as a male is different, gender-wise, from a child- bearing female! So, here is what Section 22 (on which Mr. Nandlall places so much reliance and emphasis for his specious disagreement with the learned Chief Parliamentary Counsel (CPC)’s advice to GECOM) says: “(1) If any difficulty arises in connection with the application of this Act, the Representation of the People Act, or the National Registration Act or any relevant SUBSIDIARY LEGISLATION, the Commission shall by order make any provision, including the amendment of the said legislation that appears to the Commission to be necessary or expedient for removing said difficulty, and any such order may modify any of the said legislation in respect of any particular matter or occasion ….” [Subsection (2) is not relevant for present purposes]. En passant, I observe that Section 22 is not, like Article 162 (2), a constitutional provision.
Of course, I do not pretend that Section 22 is a model of unambiguity and drafting clarity. But was Parliament (which is not Supreme, unlike the UK Parliament) intending by a discernable ambiguity in Section 22, the revolutionary (not evolutionary) novel, unprecedented thing of introducing into our constitutional jurisprudence the power of amendment of an Act of Parliament (i.e. principal legislation) namely, the NRA and ROPA, by an “order” which is subsidiary (or delegated) legislation! I say emphatically, unhesitatingly, and unreservedly – NO. That would be to transfer by a side wind, and make a mockery of the constitutional doctrine of separation of powers, for which purpose GECOM comes or falls under the arm/branch of the Executive (not the Legislative (But such intricacies of constitutional law is outside the scope of this letter). What it seems to me that the draftsman is constitutionally permitted to do, and was embracing in Section 22, is the power of modification by Orders, (such being subsidiary legislation) of preexisting orders, rules etc., under the NRA and ROPA, which pose some difficulty in the conduct of the GRE, to GECOM, given the (un) foreseeable exigencies of any situation. It is sheer commonsense that there can be no contemplation of modification of what does not exist.
The draftsman of Section 22 must, like most lawyers, have been only too well aware of Section 20 of the Interpretation and General Clauses Act Cap 2:01 (an Act expressly “binding on the State”) which, inter alia, provides that NO SUBSIDIARY LEGISLATION CAN BE INCONSITENT WITH ANY ACT OF PARLIAMENT. Inconsistency would make the Order “void” (as interpreted in the local case of Bertie Ramjohn v Ramdin (1981-82) GLR 125 per Gonsalves- Sabola JA p 144; and matters of (un)constitutionality of Orders were extensively expounded in Hope & AG v New Guyana Company Limited, and another (1979) 26 WIR 233; the learned reader is referred to the instructive and illuminating case of Shrimpton v The Commonwealth, and Another, 69 C.L.R 613 per Dixon. J at p 629 and McTierman, J at p 632). Applying Bertie Ramjohn: The proposed GECOM order (not being the “notice” under Article 162 (2) of the Constitution) cannot be contrary to what is provided for in/by the ROPA (Sections 84, 86 -89, 96, 99) – Espressio unius est exclusion alterius (the expression of anything is the exclusion of others not mentioned). The supreme law must, by its express limitation of GECOM’s power to disregard Acts to only Article 162 (2) situations, be interpreted to have by necessary implication, disallowed, precluded or prohibited GECOM from disregarding, or noncomplying, by any form of subsidiary legislation, with the NRA, and/or ROPA.
Particular attention is drawn to the circumstance that whereas the EL (A) A by Section 12 expressly seeks to amend Section 2 and 11 of ROPA, it does not at all purport to amend Sections 84,86-89,99 of the ROPA. This is a most relevant consideration.
I end with this: If I have failed to convince you that the CPC is right, and the beleaguered Nandlall is wrong, read a simplified letter by Dr. Mark Devonish (“PPP and their sidekicks are half-stepping on Region Four”- GC Thursday, March 19).
Regards,
Maxwell E. Edwards
Source: https://issuu.com/guyanachroniclee-paper/docs/guyana_chronicle_e-paper_3-23-2020