Attorney supports the decision of the Speaker of the House

Nov 28, 2016 Letters

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Dear Editor;
Once again, I happen to be dissenting from the opinion of learned Counsel, Mohabir Anil Nandlall (KN November 20-21 under caption “The Speaker and freedom to speak in the House”; SN, Monday, 21 November under the caption “A member can refer to any document in the House without having to produce it”). His proposition is that he, not being a minister but as a Member of Parliament, “he is free to refer to any document without having to produce same”.
The referenced “document” was an article as carried (as he alleged) in the Kaiteur News (KN). The Speaker of the National Assembly (Hon Dr. Barton Scotland, OR) had ruled that he had to produce the KN article. It is a point of practice. I agree (with some reservation) with the Speaker’s ruling. My reservation hinges on me not having the benefit of the fullness of the entire numbers of Standing Orders that may cast light on this point, pro and con. My reasoned agreement is based on three grounds – fairness, illogicality and unwritten rules.
First, the elementary principle of fairness. Debates are adversarial. Misrepresentation may, unwittingly or otherwise, occur, as regards a reported statement or act attributed to a member. There is in National Assembly debates no irrebutable presumption of truth of assertions or representations made by a presenting member. It can matter not one iota that the presenting member does not quote or read from the referenced “document” (source material). In the form of reported speech that member is relying on it – otherwise, why make reference to it in the first place. Fairness demands and compels its production in the Assembly (subject to limited exception as to “state paper”) so that the Speaker and the other members of the Assembly (in this instant matter at least all 33 on the Government side) can see and peruse it for themselves, individually, and verify as to the veracity of the assertions or representations made.
On this ground alone, unless there be clear constitutional/Standing Orders prescription to the contrary, the Speaker rightly, demanded its production. Indeed this fairness is embodied in the legal principle that he who asserts must prove, if his assertion is intended to be relied on and acted upon. And what other mode of proof of the assertion or representation can there be in the context of Nation Assembly proceedings, than its production (in the instant matter the KN)? None. It is not as if Glenn Lall (its publisher) or Adam Harris (its Editor) could be summoned to give evidence under oath as to that.
Second, the sheer illogicality of the proposition, in its context. The heavy reliance by Counsel on Erskine May’s Parliamentary Practice appears to me to be misguided and misplaced, as May was concerned with the exceptional situation of government documents (“state paper”) and rightly differentiated between Ministers, and non-government members of England’s House of Commons. To my mind, article 171(1) is highly relevant to the point of practice. Relevantly article 171(1) provides “… any member of the Assembly may introduce….for debate in… the Assembly and the same shall be debated and disposed of according to the rules of procedure of the Assembly”. Of course, “rules of procedure” is a compendious reference to the Standing Orders (see also section 9 of the Constitutive Act, Cap 1:01) and the unwritten rules i.e. custom, usage, settled practice.
Counsel’s proposition is predicated on the absence in the Standing Orders of (written) rules on this matter. So, whatever the rule is, it has to be found in the unwritten rules. So far, so good. But then he imports into our National Assembly’s rules of procedure, the English House of Commons position regarding, exceptionally, Minister and “state paper”, which position is underpinned by such differentiation, and persuades himself that that is also the (unwritten) rule regarding such utterly non-state paper, document or material, as a newspaper of general circulation to which absolutely no considerations of secrecy or confidentiality attaches (in this matter, the KN). There is absolutely no comparison, not in law, not in fact, between “state paper” and newspaper. And, yet, it is that differentiation factor of a “state paper” that is the linchpin of Mr. Nandlall’s proposition.
By a somewhat Orwellian illogicality (remember George Orwell’s – Animal Farm – and the famous aphorism – all animals are equal but some are more equal than others) the basic principle of fairness applies unequally and differentiatedly even to material such as the KN. Minister – members must produce; other members has no such obligation; non-government members (an analogy with Orwell’s “pigs”) were entitled to a lower standard of fairness and veracity than the Government minister (an analogy with Orwell’s “other” animals) members. The non-minister members (to which category Mr. Nandlall and all other Opposition members belong) are “more equal than others”.
Maxwell E. Edwards
Attorney-at-Law
Editor’s note; Mr. Maxwell’s letter is very lengthy and will be continued in a forthcoming edition

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