Anil Nandlall’s argument is demonstrably wrong

Nov 29, 2016 Letters

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Dear Editor,
Editor’s Note: This is the conclusion of Mr Edwards’ letter carried in our edition yesterday, under the caption ‘Attorney supports the decision of the Speaker of the House’
Anil Nandlall’s questionable logic goes like this – if a minister had referenced the self same Kaieture News article that he Nandlall did as an ordinary MP, he/she had a legal duty to produce it; and the Speaker could compel its production, but since he Nandlall is not a Minister he has (and had) no such duty. Nor is it, as if some compelling, overriding rational exist for such a differentiation in the context of material such as the KN.
Indeed, the context from which the extracts in Erskine May’s Parliamentary Practice are taken by Counsel is the very limited or restricted one of – “a dispatch or other State paper”. No English newspaper, and no local one, not the government owned/controlled Guyana Chronicle, and certainly not the privately owned Kaieteur News, comes within the ambit of the words “dispatch or other state paper”(in parliamentary parlance or nomenclature, governmental documents are called “paper”). Who else but the minister (whether author and/or custodian) having peculiar knowledge of a state paper, can produce it, (not be compelled to), especially if (as would normally be the case) those documents relates to matters of state security, or other matters of confidentiality. Surely, not the non-government member.
That is sheer commonsense. Let the gullible layman not be confused by the word “paper”. Laws (e.g. public interest privilege against disclosure) do not permit such sensitive “state paper” documents to be in the possession (the hands) of every Tom, Dick, Mary and Harry who is a member of the Assembly (only certain government officials). And self evidently (and this is sheer commonsense) you cannot be compelled (not by a Judge, not by a Speaker) to produce what by laws you are not permitted to possess. If it were otherwise then Oliver Twist’s, Mr. Bumble would be right – “the law is an ass” (in Oliver Twist’s, Mark Twain, Mr. Bumble in exasperation shouted to the Judge – “the law is an ass”). However, these considerations have no application or relevance to the KN. There are no law’s which prohibits possession of KN by anyone.
The unwritten rule ground – what I consider the coup de grace (i.e. the proverbial nail in the coffin) delivered in this matter. Paradoxically, it is delivered by Mr. Nandlall himself. He writes “I have examined the Standing Orders and I can find none which authorizes the Speaker to demand from any member the production of any … written material … to which that member refers in the course of that presentation” (emphasis mine). I consider it a sheer improbability that if there was/is any Standing Orders by which a member had a right not to produce such material, Counsel would have missed it. So, the Standing Orders being silent, the applicable rule of procedure has to be found in the other source – unwritten rules I.e. settled practice, custom, usage of the Assembly (this duality of rules was recognized and accepted by Bollers’, CJ in the local case Kumar V M.F Singh (1974) G.L.R 147).
And the lawyer’s question – what is the settled practice as regards quoting/citing documents and other materials, and the production thereof, in the context of the permissive words of article 171(1) “debated and disposed of…..”, must be answered. The Speaker must be taken to have answered it. The ruling’ of the Speaker must be taken to be the settled practice. Practice can exist either by autochtony, (ie home grown) or by import (historically, from England’s House of Commons). It would be a matter for a Speaker to decide. He decided it. There is a very familiar principle that all acts of authority are presumed to be regular and right unless the contrary is proven.
It was a matter within his (and his alone) jurisdiction to decide. He has been presiding long enough to have addressed his mind to that point and to have diligently (by researching the Hansard etc) advised himself accordingly. This jurisdiction to decide as to what the unwritten rule is (as it is his to interpret what the written Standing Orders means) devolves on the Speaker as a matter of sheer constitutional implication from the provisions of the Constitution viz articles 165, 166 etc. Poignantly, the marginal note to article 166 is – “Presiding in the Assembly” (As to the interpretative relevance of marginal notes see section 57(3) of the I.G.C.A. Cap 2:01 which Act now has constitutional force by its incorporation into the Constitution itself by article 232(9)).
The Speaker is right and unchallengeable in his ruling(s) unless the aggrieved member can show some clear constitutional or Standing Orders right, and a breach thereof, thereby rendering the matter justiciable (ie a Judge in the High Court could hear and decide the matter). By Mr. Nandlall’s own researched admission there is none. The Speaker’s ruling is a fait accompli. In conclusion, Erskine May’s Parliamentary Practice, however pertinent we might conceive it to be, it is no substitute for the written Constitution and the interpretation thereof. I consider the extracts there from, taken by Mr. Nandlall for the purpose of his proposition, and its authority, to be inadmissible as being irrelevant. Accordingly, the conclusion to which he has arrived (by an extrapolation and deduction) that he has a right not to be compelled to produce the referenced document, I consider to be insupportable and demonstrably wrong.
Maxwell E. Edwards
Attorney – at – Law

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