Dear Editor,

IT appears that by my pen I have irked or riled the Leader of the Opposition, Bharrat Jagdeo to the core. Of course, Mr. Jagdeo, not being learned, cannot be expected to understand or appreciate the idiosyncracies of our constitutional law such as zero tolerance for even the appearance or suspicion or apprehension of bias in a GECOM chairman which the expressed reference to “Judge” in article 61(2) imports. This brings me to my (offending) letter.

It has so riled him to the decadence of calling me a “sycophant”; and my letter a “gutter letter”; and wanting to investigate why my service as a magistrate was “terminated” – (press conference May 24) Both Kaieteur News and Guyana Chronicle published it on Monday, May 22 – KN under caption “Jagdeo second GECOM list is unacceptable as the first”; GC under caption – “Jagdeo has been dismissive of President’s advice”.

Firstly, I was not “terminated”, I was appointed a contracted Magistrate in October 1996. In January 2008 I experienced serious vision impairment. It was diagnosed as retinal detachment. I spent many months and much money (exhausting my lawfully accumulated savings) undergoing restorative expert surgical treatment in the USA. At the end of it all in 2009 – 10, acting on the advice of the experts I never reapplied for a renewal of my contract, which had expired in April 2008 (up to when I was fully paid). But in 2007, I had applied to be appointed a Judge. What you can investigate (ask then Chancellor (ag) and the Secretary of the JSC (then) is what was done with my application.

Secondly, in that letter, all I have endeavoured to do is to stir the points, and, in the public interest, offer my learned opinion. It is not, advisory. These are the points I have stirred. If you had done, or caused to be done, due diligence (as a matter of sheer necessity given the gravity of the matter) how could you not know of one of your nominee’s medical risk as a possible appointee? (persistent medical leave from work) assuming his appointment, is there not a real danger that in 2020 (perhaps before) the country has to endure another of this vexing impasse in another appointment process, because of bodily infirmity); and how could you not know of your nominee’s overt activism as one of the protestors, of the SCS parking meter contract, in the precincts of City Hall? (A GECOM Chairman, my knowledge of constitutional law tells me, must not only be impartial, but must demonstrably appear manifestly and undoubtedly to be impartial) and since President Granger is not psychic, he can only, telescopically in that regards, be guided by the past and present evidence of tour nominee’s public acts.

And, how could you not know that one of your nominees does not possess judge-like attributes for, inter alia, he is on record doing a taped GINA documentary concerning the Port Kaituma Jim Jones mass suicide (1980) that by its coincidence with 2015 General election reeked of partisan politicking; coupled with his rumblings over the Ogle Airport renaming by this Government. And you ought to have been advised about the real danger or potential for bias or impartiality of that nominee who has a marital relationship with your lead counsel (Shawn Allicock) in that Jagdeo third-term candidature case. Even the mute, deaf and blind cannot be hoodwinked. Lift the veil of pleadings/rubric and who would appear behind Cedric Richardson (the named plaintiff in that case)? You–Mr. Jagdeo; that case was all about Mr. Jagdeo. Consider this–your name appears in the lawyer’s pleadings and the Chief Justice’s decision, taken together, some four times. Here is a poignant, revealing extract from the Chief Justice’s (ag) Decision: “in his affidavit in support of summons the Applicant Cedric Richardson…deposed that his Attorney –at–law had advised him that the effect…by rendering ineligible for the candidature any person who has been re-elected once as President e.g. former President Bharrat Jagdeo…” But the matter involved a question of interpretation of the constitution. That is a pure question of law and as such did not to any extent, as per pleadings, or decision, require the mention or reference of Mr. Jagdeo’s name; not even once. Could that nominee pass the test of real danger of bias in these surrounding circumstances? No.

Both principle and high authorities are against that nomination. This letter is no place for articulation of the law (the learned reader is referred to the analogous Pinochet No. 2 (1999) decision of the House of Lords; – judge disqualified for inter alia his wife’s association with one of the parties in the ease –; and to the local Court of Appeal decision in DPP V. Williams and Hayles (the Lusignan massacre case) as regards a Juror’s disqualification from serving as a Juror in the High Court trial because of appearance of bias (“material irregularity”) resulting from the Juror’s non-disclosed previous client-lawyer relation with the defence counsel. The CoA invalidated/set aside the Jury’s acquittal in that case. Impartiality etc, is not congenital; it has to be cultivated, and a likely disposition for it demonstrated, or discernible in the nominees, from evidence, and in accordance with legal tests.

Fourthly, there is no room for trial and error; there is no probationary period; once appointed, not unlike a Judge, the Chairman (qua member of the Election Commission) enjoys security of tenure (article 225). Further, consider that with the Chairman’s decisive casting vote, that the Commission’s decision as to who has been elected President is not judicially reviewable (ie by any Court, article 226). Such, Mr. Jagdeo, are the far-reaching constitutional ramifications and implications of appointment from your nominations (with which you fiddle).

Nothing less than extreme vetting as to the potential appointee’s suitability for that type of constitutional office is required or acceptable. The harm, consequent upon a lax nomination – appointment, can be irreparable to this nation. Fifth, so Mr. Jagdeo, having pithily described my letter as a “gutter letter”, here is my challenge to you (it is not about polygraph); put your pen where your mouth is. Publish a letter in the press wherein you articulate and adumbrate (no political rhetoric or diatribe) as to legal reasons why, on merit, my letter is a “gutter letter” Anil Nandlall would not measure up. With your vast wealth (I am an avid reader of KN’s “Dem boys seh…” for its satirical anti-depressant effect) you can retain as strong a battery of senior counsel as money gets.

And, if the constitutional veracity and impeccability of my writings makes me a “sycophant”, that is a Jagdeoite display of intemperance and disfavour, that attracts no opprobrium for me.

Regards
Maxwell E. Edwards
(Attorney-at-Law)