Dear’ Editor,
AUBREY C. Norton makes a very poignant point (see “Jagdeo’s law comes back to haunt him” GC, Saturday, November 11, 2017). And, while but for minor mis-descriptions the caption might well have read–“Cheddi Jagan’s law comes back to haunt Jagdeo and the PPP/C” – Norton’s main point is sustainable: it was, and is an amendment to the Constitution (article 161) by the Constitution (Amendment) Act, 1995 under a PPP/C presidency (Cheddi Jagan) as further amended in 2000 that was invoked by President Granger in his appointment of James Patterson as GECOM Chairman, and to that extent, their law, has with the shift of the presidency/government in 2015 to the APNU + AFC, worked against them.

So, it must be nauseatingly irksome for Jagdeo and the PPP/C to be reminded in this time of agony of their GECOM chairman-appointment impotency and disappointment, that it was their contrivance for constitutional dominance of the presidency in that appointment process, emasculating the leader of the opposition’s power under the so-called “Carter Formula,” (ie what article 161(2) should have been without the Proviso) that is the real effective self-induced, self-inflicted cause of their agony.

The great irony is that the 1995 amendment had not shared the power of appointment between the President and then “Minority Leader (now leader of the opposition) as envisaged by the “Carter Formula” without the proviso. The Cheddi Jagan amendment departed from that formula; the proviso was added to it; it is there as part of the law, we take the law as is, as we find it.

Editor, lawyers who put on their political blinkers lose sight of the law and its substance and misdirects their focus on matters of irrelevancies or red-herrings. This is the self-induced dilemma of both Kamal Ramkarran, and Christopher Ram. The lawyer’s question in the context of the main point in Norton’s articulation is, and must be: what was the PURPOSE of the 1995 proviso/amendment; and which party as between the then PNC (as opposition with “Minority Leader) and the PPP/C (as Government/Presidency) materially benefited, or was anticipated to materially benefit or gain some advantage ‘from the Proviso?

Ramkarran does not address this question at all. (see “Constitutional provision relating to GECOM Chairman was passed with PNC support” – SN Sunday, November 12, 2017). Ramkarran’s point about the “Herdmanston Accord is” as I will show self-evidently misplaced and irrelevant; his point about PNC support is hollow.

The then PNC derived no benefit or advantage peculiar to it, even as it supported and enabled the passing of the 1995 amendment; it appears to me that misdirecting his focus on PNC’s support is at best, an argument in mitigation (there is no law of contributory responsibility in a matter of this type); the argument about PNC support does not diminish one jot the essence and substance of Norton’s point: the law which enabled and empowered President Granger to appoint retired Judge James Patterson (not a Jagdeo nominee) was enacted under a PPP/C government/presidency, in such manner and form that overwhelmingly benefits the President.

Aubrey C. Norton (who is not a lawyer but a politician) with his expected politician’s blinkers on, nevertheless, captures that it was under the Jagdeo presidency in 2000 (he refers to “Bill No. 2 of 2000”, so he knows the difference between Bill and Act) that the 1995 amendment (and more particularly Article 161(2)) came under further reconsideration/review and amendment, but was ADOPTED (as the saying goes – “looks, stock and barrel”) with not one iota of change to its substance; and with all the dominance of the presidency, and the potential impotence of the leader of the opposition fully preserved and maintained (the cosmetic change of “Minority Leader” to “Leader of the Opposition” apart; other change (most of them otiose) are not relevant).

So, turning to Ram’s point about acting President Sam Hinds assenting to the 2000 Bill as passed (ie the “Bill No 2 of 2000” as referred to by Norton in his letter) and not Jagdeo – it is pure legalistic nonsense; it is what lawyers call – a red herring. The substance of the matter is that it was the Jagdeo Presidency/government/Cabinet Minister who introduced the amendment Bill in the National Assembly; Jagdeo (not Samuel A. Hinds) must have approved it at Cabinet for introduction in the National Assembly.

Would he have withheld his assent if he were in Guyana, instead of PM Hinds performing his functions? In assenting, PM Hinds was not on some frolic of his own. Besides, our constitutional law does not permit a President (Jagdeo in 2000) to disassociate himself from, or disavow, those acts of the acting president; for, to all legal intents and purposes, those acts are, de jure, the President’s (the conjoint effect of articles 170(1) and 232(9) of the Constitution, and section 26(2) of the IGCA Cap. 2:01).

Editor, the point must be stressed that the PNC (then) was not the author of the law in Article 161(2) that permits by the Proviso the subversion of the spirit of the “Carter Formula”; the PPP/C government/presidency was; and when the opportunity for its re-form (pursuant to the “Herdmanston Accord” menu) arose during the Jagdeo presidency in 2000, rather than reform it, it was knowingly adopted and maintained.
And it is a matter of some curiosity whether the PNC was meaningfully consulted for, and during the drafting of the Bills at the Attorney General’s Chambers, either in 1995 or in 2000.

Finally, I say this: by a somewhat Orwellian illogicality Jagdeo/ the PPP/C (and its lawyer proxies) would wish away the truth and constitutional truism that all Presidents are equal, and in its place conjure up some delusion that, some (the PPP presidents eg. Jagdeo) are more equal than others (eg the APNU Presidents eg David Granger). So, for them, the power and contingent duty to appoint without a list that Cheddi Jagan as President in 1995 secured by the amendment to article 161, and Jagdeo as President adopted, preserved and maintained in 2000, lapsed or expired in May 2015 when the PPP/C government presidency ended; and the APNU + AFC presidency replaced it. But, not so at all.

That is fiction. No megalomaniac diatribe can change fiction to constitutional reality; the reality is that the proviso is extant today, just as in 1995, 2000, and invokable today, just as how it would have been invoked by Jagan and Jagdeo if, the then minority leader/leader of the opposition (as the case may be) had failed to submit a list that was acceptable to them (Anil Nandlall’s feeble, delusional desire to pretend the proviso is but mere surplusage is the latest diatribe even as he misquotes Thomas Fuller “A government of laws, and not men” SN 17/11/18.)

There is an analogy between Jagdeo, and Shylock in Shakespeare’s “Merchant of Venice”, and a judicial lesson to be learnt. Space does not allow an erudite, elucidation. Suffice it to say that just as how in the Merchant of Venice, the “wise young judge” Portia adjudged that Shylock was entitled under the laws of Venice to his pound of flesh, BUT, the said laws also worked against him to his detriment and in Bassanio’s favour; so would Jagdeo find out that the very article 161(2) that works and was intended to work, in favour of, and for the dominance of a PPP/C President, and to the detriment and disadvantage of a PNC minority leader/leader of the opposition, is one and the same law in 2017 that works in favour of an APNU+AFC President; and to the detriment and disadvantage of a PPP/C leader of the opposition.

Having taking the benefit of a law, the PPP/C must with equanimity suffer and endure and abide its burden. The law is, and must be even-handed. Even-handedness requires Jagdeo as leader of the opposition now, to be in the same position as a PNC minority leader/leader of the opposition would have been if he had failed to submit an acceptable list.

Regards
Maxwell E. Edwards