Anil Nandlall needs a refresher course in legal research

Dec 15, 2016 Letters

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Dear Editor,
At the U.W.I, Faculty of Law, Cave Hill campus, Barbados, every law student does a course called – “Legal Research and Writing” I did it in 1980-1981. You learn, that having identified the issue/question/point of law (or mixed law and fact) that is raised, there is a priority of order of the sources of law that you research (depending of course on the difficulty, complexity or novelty of the issue) to find the answer to the question(s)/issue/point raised. The order is this: first, the Constitution; then Acts and Subsidiary Legislation; then the Common Law i.e. decided cases – law (the Law Reports); then recognized textbooks (eg Erskine May’s, Parliamentary Practice); then legal publication (eg Modern Law Review, L.Q.R, C.L.B etc).
You learn about relating principles (as applicable) to given facts; you learn the technicality of distinguishing. Why do I mention all of this? Having read Mohabir Anil Nandlall’s letter (K.N, December, 05, 2016 captioned “This attorney lacks training in the field of parliamentary matters”) in reply to mine (K.N November 28-29 captioned “Attorney supports the decision of the Speaker of the House/Anil Nandlall’s argument is demonstrably wrong”) which was in response to his (K.N, November 20-21, 2016 captioned “The Speaker and freedom to speak in the House”) S.N, Monday, November 21 captioned “A member can refer to any document in the house without having to produce it”); I am acutely reminded why that course was (at any rate in my time) compulsory. Mr. Nandlall needs a refresher course in Legal Research and writing.
In his feeble attempt at self – vindication, and impugning and discrediting my reasoned arguments based on three grounds – fairness, illogicality and unwritten rules, he writes; “I consulted the Standing Orders and leading texts on Parliamentary Practices and Procedures….. Mr Edwards takes umbrage to my aforesaid conclusions … while mine was based upon the venerable authorities to which I have referred…. He cites no authority in support of his contention. In short Mr. Edwards is asking your readership to disregard the learning propounded by those respectable authors and accept his….. Mr Edwards has no known training in the field of parliamentary matters…. Every rational mind will advise that his opinion must yield to those trained in the field….”
It is true that, as he insinuates – I have never been a member of the National Assembly. But I am not aware of any course of studies or subject (however called) in the sphere of public Law, about parliamentary matters. I know of a post – graduate course in Legislative Drafting. So, what form does this anomalous “training” takes? Only he knows. The matter is about some relevant unwritten rule or procedure. I invoked fairness of procedure in my effort to identify that rule. Fairness is a conception familiar to all legal minds. The cases are legion where Judges of true eminence and greatness have invoked fairness as a ground for their decision; or for expounding some principle of law, where the written law is silent.
This anthropomorphic conception of fairness (with which Mr. Nandlall has taken issue as one of my reasoned grounds for supporting the Speaker’s ruling) is, like justice, blind. Moreover, it is a constitutional precept (the fundamental right to a “fair hearing” embodies it). It transcends the political divide between Government, and, Opposition. When the shoe is on the other foot, it would be there for him to enjoy its benefit, in like measure as it is there for him now to endure its burden. What can be wrong or objectionable about a rule of procedure being fair? Has he lost his reason?
Be that as it may, I turn now to the gravamen of my arguments. Counsel needs to be reminded (for certainly he knows) that our Constitution is our supreme law and cannot be ignored in any research and writing effort. So, unlike his non-direction, I, directed myself to the high relevance of article 171(1) in this matter, and in particular to the pointed words “… according to the rules of procedure of the Assembly”. Article 171(1) compels, in this matter, that attention be drawn to “unwritten rules”. Unwritten rules is not a creation of Mr. Edwards; the Constitution explicitly recognizes their abstract existence (see article 232). And procedural rules are no less law, than substantive rules.
I cited the local case law authority of Kumar V M.F. Singh that those “rules of procedure” has been authoritatively interpreted as embracing both the Standing Orders; and, unwritten rules. So, Mr. Nandlall is being mischievous and delusional when he writes “He cites no authority for his conclusion”. Legal research and writing taught us that the Constitution is a source of law, and ipso facto the soundest, unquestionable “authority” conceivable; baring any binding case – law interpretation thereof. In our legal system text books, no matter how venerable, are never considered as a primary source of law.
Notwithstanding that, I have not insinuated, or otherwise, any disagreement (or disregard) with what is propounded in Erskine May’s Parliamentary Practice. My vehement disagreement (which I maintain) is with Mr. Nandlall having palpably misdirected himself as to the relevance and applicability of certain extracts in May’s (which he takes wholly out of context) and misrepresents and misapplies them as authority and support for his misconceived conclusion (ie a Minister only must produce any referenced material) which he postulates. That is not permitted. Further explanation will follow in a forthcoming letter
Maxwell E. Edwards
Attorney-at-Law

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