Patrick Yarde’s two conflicting positions need discussion

Jun 03, 2017 Letters

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Dear Editor,
With reference to the letter in KAIETEUR NEWS of May 29, 2017, headed, “Patrick Yarde is not in a conflict of interest situation”, published in the name of Dawn Gardener, I assume that the person bearing that name is the one known to me as an affiliate of the GPSU in an executive capacity.
Ms Gardener’s major concern is apparently with the fact that questions have been raised about the appointment and access of Mr Patrick Yarde, President of the GPSU and a member of the Public Service Commission (PSC) to serve as acting chairman of the PSC.
I find parts of Ms Gardener’s letter both attractive and persuasive; specifically with reference to its introductory statements identifying aspects of the law pertaining to the PSC, its membership, functions and powers. But at the same time, I experience difficulty in accepting the latter part of her conclusion that, “it is pellucid and unambiguous what was done and to emphasize is in accordance with the Constitution of Guyana the supreme authority. It is therefore, disconcerting to see the accommodation and publication that is repeatedly given to inappropriate comments on this matter”.
I also find problematic, Ms Gardener’s other statement that,” It appears most ironic that one who has been in the vanguard of these achievements for justice and fair play and who, individually as a member of the PSC, has no power to make any decision on behalf of the PSC, is being singled out for personal attacks. The only conclusion one could have is that these persons are narrow minded, petty and have a grudge. The GPSU condemns and rejects this banality.”
I do not understand how such conclusions could be proffered as helpful in the achievement of consensus and goodwill among persons who sincerely believe in the efficacy of their arguments and positions. Such statements are more likely to be construed as negative and counter – productive in the attempt to promote and protect the public interest.
At any rate, they are not legal arguments designed to address problems of varying degrees of difficulty and complexity. In this regard, one may well enquire why other functionaries who are properly appointed in constitutional and legal terms and possessed of clear powers and authority to deal with certain matters nevertheless find it necessary to decline participation in certain matters and in certain circumstances (for example, we have had recent cases in which judges recused themselves in certain trials) and if they do not questions could be raised about the likely consequences.
I am apparently the object of special focus and attention by Ms Gardener in her statement that Mr Yarde had reported to the Executive Council of the GPSU that I had at a named place and occasion “raised the issue of the conflict of interest with him which he dismissed.” I clearly recall that there was an exchange, (by no means hostile) between myself and Mr Yarde on the subject. I do not recall that I was the one who initiated that exchange. At any rate, Mr Yarde was at the time “on the move” and was therefore in no position to participate in any meaningful discussion with me on the issue.
That was not the first occasion on which Mr Yarde and I had an exchange on the matter. I distinctly recall his unequivocal position that the Pinochet case, which he was the first to mention, was nonsense. His position in this regard, I expect, is based on his personal reading and understanding of the principles articulated in that widely acknowledged leading case, or as he has been advised.
However, as one with a measure of legal training I disagree with his conclusion and interpretation especially as during the course of my own training I had been, quite early, exposed to other relevant cases such as Dimes v Grand Junction Canal Proprietors ; and R v Sussex Justices, ex parte McCarthy. I firmly believe that the situation in which the President of the GPSU is also simultaneously serving as Chairman of the PSC, given the related and relevant roles of the two institutions, deserves to be subjected to public scrutiny and discussion.
I recall that one of the comments in the Report of the COI on the Public Service, under reference, specifically emphasized the need for members of the PSC to be exposed to the meaning and importance of the Rules of Natural Justice in dealing with persons appearing before the Commission. But that apart, in expressing disagreement with the views and positions of others, one has to be conscious that the language and behaviour one uses, exhibits, or displays may also be among elements considered relevant in judging one’s suitability for appointment and service in a given capacity.
The Report of the COI in which the recommendation mentioned in the foregoing appears was submitted to the President of Guyana in May 2016. However, it may well be that it was by chance, that I was viewing a programme which appears on Sundays on Channel 9(TV) when the person being interviewed was identified as one who was in disagreement with both the conduct and declared results of recently concluded GPSU elections. Among the points made by that interviewee was a concern about unfairness of treatment were he or others to appear before the PSC as Mr Yarde was serving as its Chairman.
From the contents of Ms Gardener’s letter there is apparently the view that my position on the conflict of interest and bias issue is so well known and influential ( and perhaps respected?) that it has motivated and galvanized others to also raise the matter in the press and other locations to the detriment of the GPSU and its leadership.
There should be no doubt that I am in sympathy with those who exercise their constitutional right to raise and discuss a matter of such vital importance to the public with no expectation that, if and when they do so, they would not be subjected to hostile and negative descriptions and ridicule. I should also mention that the interviewee mentioned in the immediate foregoing paragraph indicated that he and his group are in the process of initiating legal action in regard to , inter alia, the appointment to the chairmanship of the PSC. I was, and am in no way involved in their decision to move in that direction.
My view that the issue is likely to be litigated is based on my observation of the use which is generally being made of this process and the inclination and readiness with which politicians in particular now use it not necessarily only in vindication of rights, but also as a means of scoring political points. And I am sure that I do not have a monopoly on such thinking.
Ms Gardener in her letter adverted to the fact that I had informed Mr Yarde that the Commission of Inquiry into the Public Commission of which I was Chairman had some recommendations with respect to the PSC. As she stated, “Mr Yarde reminded him that the COI’s recommendations were not fully supported by the GPSU. In fact, it should be noted that the GPSU had publicly stated that it did not agree with some of the recommendations of the COI”.
I am personally puzzled by this statement for other members of the COI and I were never under direction or pressure to ensure that our findings and recommendations accorded with the thinking or desires of any group, or even of the Government. As commissioners we were keenly aware that after our report was submitted to the Government further action on it, would be within the province of the latter that had the authority and power to implement, or not, recommendations and findings in keeping with acceptable and established processes and practices. Is that not the essence of the democracy we articulate and to which we lay claim?
Harold Lutchman

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