By Maxwell Edwards

LEARNED Counsel Anil Nandlall must be the only “apologist” who does not know that he is an apologist/propagandist. He uses the cloak of the CCJs adumbration in its ruling on July 12 about “caretaker government”, misrepresenting it as if it were part of the “consequential orders”, to spin his propaganda. (see his letter under caption “Text cited by CCJ identifies broad restraints on caretaker gov’t” (SN Sunday July 14, 2019).

Such misrepresentation apart has earned Counsel no respect, or reverence, for article 8 of our Constitution? “Interim” government – Yes, in the sense of the government in place, pending the General Elections in, and by, which the question of the loss of confidence raised by the No-confidence Motion (NCM), is finally decided. “caretaker”– a rather questionable conception, when applied to our unique and autochtonous Constitution. But the premise of the CCJs adumbration is accepted that article 106 envisages some restraints; but by its silence leaves such restraints to be decided by the Government as determined by the public/national interest. No government (interim or otherwise) can be expected to act inimical to the public interest.

Because of the utter relevancy of Article 8 in some sober rejection of this “caretaker” opposition political hysteria, admittedly, generated by the CCJs adumbration especially at paragraph [8] of its ruling. However, Article 8 of the Constitution provides thus: “This Constitution is the supreme law of Guyana and if ANY OTHER LAW is inconsistent with it, that other law shall to be extent of the inconsistency be VOID”. (Article 232 defines “law” (in the context of any other law) as including “unwritten law” – convention; settled practice, are examples).

In his letter Nandlall, writes “in its ruling, the CCJ referred to the text ‘Constitutional law of Canada by Peter Hogg’ as the source from which it borrowed the phrase “caretaker”. Detached reading of paragraph [8] merits a somewhat different paraphrasing that would have highlighted chancellor (ag) Cummings – Edwards reference to “caretaker/interim” in a court of Appeal judgment, we know, decided that the NCM was not carried. Be that as it may, the mere fact of Canadian law being the source brings Article 8 into very sharp focus.

Mr. Nandlall ignores this what if that Canadian source can be shown to be inconsistent with our Constitution? That extraneous Canadian law notion of “caretaker government” is, or ought to the learned, to be plainly inconsistent with the wording and scheme of inter alia, article 89, 99, 92 and 156 of our Constitution. But this is intricate, complex constitutional stuff revolving around the principle of the various levels of entrenchment which it is outside the scope of this letter to articulate and elucidate upon. Suffice it to say that Peter Hogg’s text was not even remotely concerned with such constitutional provisions as articles 89 and 99 (being two of the eleven most sacrosanct articles in our Constitution by their deepest level of entrenchment) which conjointly, has vested the supreme executive authority of Guyana in the PRESIDENT – not even in cabinet, not in the National Assembly.

Does Peter Hogg give any academic view on such change of position as happened, when the loss of confidence that transpired on the 21st December, 2018 with the NCM, was effectively nullified, and confidence restored and regained on 3rd January 2019 as I will show? Be that as it may, the crux of the matter is that caretaker government is not part of the menu of “Consequential Orders” announced by the CCJ on July 12 (see paragraph “[9] a) – h)”. Moreover, our Constitution provides for, and permits, confidence lost to be easily regained and restored by a regime of RECALL constitutional provisions (Article 156 – referred to in [9] d) by CCJ as “anti-defection regime”).

APNU+AFC has never been a minority
Readers, I stir these points not to challenge the erudition of either chancellor (ag);or the CCJ. Not at all. I stir these points to raise the public’s consciousness about whether the Opposition’s hysteria about the CCJs pronouncement about caretaker government is not only misleading, but socio – politically dangerous. Readers, the CCJs 12th July ruling does not recognise that President David Granger exercising his constitutional power under article 156 of our Constitution, recalled the defector Charrandass Persaud, and by extraction, he Persaud, was duly replaced as a government elected member of the National Assembly by Barbara Patricia Pilgrim, sworn in on 3rd January 2019; and thereupon his Government restored its MAJORITY in the National Assembly. Surely, this evidence was before the CCJ as part of the Attorney General’s printed case. If Peter Hogg was writing a “Constitutional law of Guyana” what would he have written about such a supervening factor? The APNU + AFC government has never been a minority government to warrant, or justify, any label of “caretaker” pending General Elections. It is not legislatively some feeble government seeking refuge in prorogations.

All the plenitude of its Executive and legislative powers it assumed on 15th May and 10th June 2015 respectively are extant, to be used, albeit with convenient restraints, in a manner not inimical to the public interest.

And so readers, there can be no greater nonsense than the political rubbish spun by Anil Nandlall when he writes “So the government apologists can spin all they want but any actions taken, decisions made, or policy implemented outside of the parameters delimited above will necessarily be ultra vires without and in excess of jurisdiction, contrary to the Constitution, unlawful, illegal, null, void and of no effect” (see his letter of Sunday July 14) Nandlall must be confused; the Canadian Constitution, is not Guyana’s. What would be “void” under article 8 is Peter Hogg’s parameters,to the extent they conflict with the wording, tenor or spirit of articles 89,99,92, and 156. It is one of the curiosities of our Constitution that article 156 effectively enables a NCM defeated government to both politically, and constitutionally, sanitise its membership in the National Assembly and secure a restoration of confidence in the Government. That has happened.

And, there is yet another formidable argument against the hysteria about Peter Hogg’s “caretaker government” convention. It is not a term of legal art. I argue that if “caretaker government” was the intention of the draftsman/Parliament in Act 17/2000 when article 106(6)& (7) was inserted into our Constitution, nothing would have been easier than to put it in explicitly in wording in article 106(7) ex abundant cautela (ie out of abundant caution). But Parliament did not. Nor is it obvious. And we take the Constitution as it is; not what some of us may conceive it ought to be. “Caretaker” with all its nuance or ramifications of diminished legal authority, is the antithesis of “supreme executive authority” (articles 89/99). That is heresy.

So, I turn briefly to a convention case. It is regrettable that the CCJ did not consider the case law that is the Privy Council case of Adegbenro V. Akintola and Other (1963) 3 AII ER 447, in its adumbration about “caretaker” convention which is not explicitly provided for in our Constitution; and which the CCJ, respectfully, rightly, considers “convention” (see paragraph [8]). In that case the Privy Council rejected an invitation, during arguments on appeal, to apply United Kingdom constitutional understandings /principles/doctrines ( cf. the Canadian “convention”) in its interpretation of the Nigerian Constitution as to how, and when the Government no longer commanded the confidence, or support of the majority of members of the Assembly.

Hyper exaggeration
That persuasive Court, Regionally of highest appellate authority still for all Caribbean nations, (except Guyana, Barbados and Belize), made this very seminal and illuminating observation thus: “… while it may be useful on occasion to draw on British practice or doctrines in interpreting a doubtful phrase whose origin can be traced… it is in the end the wording of the constitution itself that is to be interpreted and applied, and this wording CAN NEVER BE OVERRIDDEN by the extraneous principle of other constitutions which are not explicitly incorporated into the formula that has been chosen as the frame of this Constitution” (see at page 551 A – C) emphasis mine. Translation into our Constitution: the “wording” is article 89,92,99; 106(6)& (7) and 156. The “extraneous principles” are Hogg’s “caretaker” parameters, which for Anil Nandlall transcends articles 89,92,99,156. That is heresy.

I end with this: I for myself, do not attempt any distillation, and is contented the phrase “caretaker government” does not appear in the “consequential orders” the CCJ made in paragraph “[9] a) – h)”. Ex hypothesis, the President can, even now, cause to have a motion/vote of confidence proposed and carried in the National Assembly by the APNU+AFC 33 seats majority. Can a “caretaker government” do such? If on the 15th May 2015 this APNU+AFC government with its 33 seats majority was not a “caretaker government”, by what common sense, or constitutional logic can the self-same government, with the self-same President, with his self-same sacrosanct undiminished supreme executive authority; with its self-same 33 seats majority, now, be a caretaker one merely because of the inevitability of general elections? Again, I say I have stirred these points to raise public consciousness about the hyper exaggeration of negativity by propagandists such as Anil Nandlall and Ralph Ramkarran, S.C over the CCJs adumbration of caretaker government.