Executive lawlessness is the order of the day

Jan 18, 2009 AFC Column, Features / Columnists

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By Khemraj Ramjattan
AFC Chairman

The Trade Union Recognition (Amendment) Bill No. 25 of 2008 was the source of much controversy in Parliament recently. The Government’s entire motive of wanting a quick passage was to degut the Trade Union Congress of its powers to appoint nominees on the Recognition and Certification Board.

This Board must be stacked, in accordance with the gospel of Freedom House’s democratic centralism, with loyalists. Loyalists will be nominated by FITUG; not the TUC. So get rid of the TUC by changing the law.

What is the change? Effectively, it is deleting the words – “such associations as in the Minister’s opinion are the most representative associations of trade unions” and replacing with the words – “the most representative organizations of workers.”

The AFC has always been dissatisfied with the state of disunity of the labour movement. The source of this disunity falls straight into the laps of the divisive power-politics of the PNC then, and the PPP/C now. We are happy to see movement towards unity under President Gillian Burton’s stewardship of the TUC – though same is excruciatingly slow. She has been identifying and being constructively critical of the personality hurdles which must be crossed before resolution of this perennial problem.

It was for this reason that the AFC proposed an amendment to the Bill no. 25 of 2008 to include both “the representative association of trade unions” and “the representative organizations of workers.” Effectively, our position was that nominees must come from the Minister after consultation with both TUC and FITUG. This was far more inclusionary than just having singularly FITUG or the TUC naming the nominees.

But “No!” to such an amendment, said the Government. The PPP/C does not give an inch. Its siege-mentality which results in either its way or no other way is going to consume us all.

Additionally, a proposal to defer the Bill to allow consultation with the TUC was argued for. This was so, also, in view of the TUC’s intended ousting from its status quo, and in view of the known fact that consultation with the TUC as regards this particular Bill was in serious deficit.

The propaganda of Minister Manzoor Nadir must be taken with a pinch of salt – epsom salt. This specific Bill was only laid in Parliament on 18th December, 2008, the very heart of the holiday season. Yet he argues that consultation was had since 2006. Mr. Nadir must realize that that was another Bill with major variance from this; although, I will concede, with the identical motive as this one of 2008.

Consultation with stakeholders in a matter which affects or impacts them has been provided for in our Constitution. Mr. Chase SC, Mr. Ramson and Mr V. Persaud in 1987 representing Mohamed Allie, (and if I may say so, the entire PPP, GAWU, NAACIE, and CCWU), realized one of our Court of Appeal’s finest rulings in its entire history in the case of Attorney General v M. Allie (1989) LRC [Const] 478 when they successfully argued that the constitutional principle of consultation was justifiable.

Let me just remind what was the Court’s ruling. “The words “trade unions….are entitled to participate in the decision-making processes of the State” provide a manifest and unequivocal grant of a clearly defined right which was enjoyable at present, and it was the Court’s duty to consider the relevance of Article 11, [now article 149C], when determining the validity or invalidity of legislation that directly affected the consultative role of trade unions.”

Chancellor Keith Massiah was at his best when he said: “the consultative role assigned to trade unions and other organizations under Article 11 is an exemplification of the political theory that considers the involvement of the people in national affairs to be a sine qua non of a democracy.”

And then again when he came down to his determination: “The Minister caused Parliament to be in breach of the Constitution when he denied the trade unions the right to which they are entitled there under [i.e. consultation] in relation to important matters that relate to one of their fundamental objectives – collective bargaining.”

This jurisprudence remains with us up to today and ought to be until eternity. But notwithstanding quoting these passages in the Assembly and referring the case to the Speaker of the House, the PPP/C members booed and said through the heckling of Neil Kumar and, just imagine, Komal Chand and Donald Ramotar, that: “Duh don’t apply now!”

I fought against this inconsistent double-speak and outrageous hypocrisy while within the PPP/C’s ranks – and was expelled as a result. But those left in there continue this abysmally reckless “groupthink”, as Ian Mc Donald so wonderfully describes it in a recent column.

In 1992, at the Institute of Advanced Legal Studies, University of London, I was so full of pride upon hearing Mr. Peter E. Slinn and Professor James Read, General Editors of the Law Reports of the Commonwealth, both paying tribute to the work of the advocates and especially the brilliant judgement of Chancellor Massiah in this case. Mr. Slinn mentioned that it was one of the finest judgements from the Commonwealth with a high class articulation and an impeccable reasoning.

But quoting passages from this landmark case to the PPP/C Parliamentarians was like casting pearls to pigs!
To further entrench the justifiability of consultation as a governance principle, the last constitutional reform process made sure that it was given a definition in Article 232.

There must be an affording of a reasonable opportunity for the persons or entities consulted to express a considered opinion on the matter; and the preparation and archiving of a written record of the consultation; and a circulation of this to the persons or entities consulted.

Mr. Nadir did none of these things! His conduct was thus unconstitutional; and, will result in the Bill being so declared. This illegality comes so close after the fiasco of giving away concessions to Queens Atlantic when there was in place no law to do so. The Minister of Finance had to pass legislation to legalise this illegality.
Now who in their right minds would want to deny that executive lawlessness is indeed the order of the day?

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