Giving thanks for foreign friends, democratic wrangling, and vagueness?

Nov 12, 2017 Countryman, Features / Columnists

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By Dennis Nichols

Well, my Guyanese version of a Halloween tale is over; but maybe some tricking and treating is still going on with our politicians and foreign friends; in this country it seems we’re never too far from an injection of outside influence, like American tradition.
Soon it will be Thanksgiving, Guyana-style. And since we don’t have enough turkeys for every local pot, we’ll have to gobble on chicken, giving thanks that the alternative bird is still available and affordable here. And many will most definitely give thanks for the largesse, though questionable, being bestowed on us by the Americans, ExxonMobil, and the Chinese, especially after that huge ‘security boost’ package recently delivered to our beleaguered police force.
And if our neighbours to the West get more combative in the not-too-distant future, be reminded that we already received some Chinese military equipment earlier this year. We may want to give thanks that our country has so far been spared any major natural disaster like the ones experienced by our sister nations in the region less than two months ago.
Meanwhile, the Gecom Chairmanship-Article 161 (2) conundrum has hit Guyana like a whirlwind, with our politicians and legal minds doing most of the whirling. And why shouldn’t they? After all, the appointment of whomsoever as Chairman of the Elections Commission could be a significant factor in determining what happens to our country three years down the line – whether ballot papers and barrels of oil mesh in a seamless flow, or trigger more political and socio-economic upheaval, even with oodles of money beginning to pour in, hopefully.
Should the ruling party retain power (with Mr. Patterson at the helm of Gecom) and the latter happen, many Guyanese will point back to the appointment of the retired octogenarian jurist as Chairman of the Guyana Elections Commission, and wonder indeed how fit and proper was he, or the man who appointed him, for the job. Should the opposition party regain power, they may look even farther back and thank Jimmy Carter (again) for his 1992 ‘intervention’.
The following quote has been attributed to the Buddha, “Believe nothing, no matter where you read it, or who said it, no matter if I have said it, unless it agrees with your own reason and your own common sense.” I like it, but in a world of experts on every imaginable subject, and because I like listening to what others have to say, it could be a tricky trade. Yet, based on the validity of the quote, I can choose to believe that President Granger has done or not done the right thing in selecting and appointing Justice (Rtd.) James Patterson as Chairman of the Guyana Elections Commission.
But the president, by virtue of his position, doesn’t have the same kind of latitude in his choice, since he is constrained by what the constitution of Guyana says or appears to say on the matter. Or does he? From what I understand, constitutions and other legal documents may be deliberately framed to be ambiguous in certain aspects, and from a layman’s point of view I do see some vagueness in 161(2) no matter how clear it may be to others.(By the way, I do prefer someone younger and less ‘forgetful’ for the job)
Because of the perceived vagueness I can neither support nor condemn any one or other interpretation of that article. I am simply wondering why it could not have been worded more clearly so as to lessen or negate any confusion or need for interpretation. For example, with respect to one of the main points of disagreement, instead of tacking on the phrase ‘or any other fit and proper person’ to that judge-like individual, why couldn’t its meaning be clarified in a separate and complete sentence, in which it is additionally stated that one person gets the final decision, or it is made absolutely clear that a name must be picked from the opposition list thus rendering any other option illegal.
I am no lawyer but that’s the kind of straightforwardness I would expect on such an important subject, within or without the spirit of the law. Something seems wrong when intelligent, professional people like lawyers and politicians stubbornly or dogmatically cling to different interpretations and conclusions as to what I believe should be a relatively uncomplicated process. However, it appears that many laws are written partly to stir just such debate.
I remember many years ago, for the first time in my life engaging in discussion on an aspect of the Laws of Guyana, Cap. 36:01, which relates to National Insurance and Social Security. I can’t remember the section, but we (Trainee NIS Inspectors) were asked our opinion on how we thought a certain clause should be interpreted, possibly contrary to how it had been hitherto accepted.
I can’t remember exactly how it went, but I do remember suggesting from my perspective, a different understanding, and was more than a little surprised when the training officer seemed to agree. Naïve me; I would have thought that something as serious as what the regulation implied would not be less than specifically worded.
It took me a while to realize that parts of many such legal documents are intentionally vague or even ambiguous, not the least of them being the Constitution of the United States of America. One critic noted that, “If there is one ‘original intent’ we know of the Founding Fathers, it is that they wrote the constitution intentionally vague.” But why?
An Emeritus Professor of Law at Duke University School of Law in North Carolina, in referring to the complaint that words, the tools of lawyers, are vague and imprecise, observes that ‘it is precisely this vagueness in language which often permits the law to perform so many of its social functions … If men had sufficient technical terms of very precise meaning to cover every complex idea they wished to express, vagueness would perhaps not be so necessary as a means for achieving precision in discourse.”
He went on to give an example of the use of vague language in legal directives to postpone ultimate decision. He noted that “In ordering integration of the public schools, the Supreme Court said that integration must proceed ‘with all deliberate speed’. The initial decision as to what is ‘all deliberate speed’ in any particular situation is left for the lower federal courts, (to interpret?) after an examination of the circumstances of each case.”
He also referred to the ‘due process’ provision in two Constitutional amendments as ‘some vague general standard which can evolve through a series of individual applications … which can even change in content as the nature of society changes.’ Obviously the framers of such a document had it in mind to encourage dialogue and debate; difference of opinion, and of interpretation. But at some point in certain delicate matters, and in the absence of consensus, someone must have the final say. In our case will it be the president, the Supreme Court or the Caribbean Court of Justice?
Wikipedia tells me that in American constitutional law, if a statute is too hazy for the average citizen to understand, it can be ‘void for vagueness’ and unenforceable – when for example that citizen ‘cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed.
‘Do we have laws and other regulations here in Guyana that may be void for vagueness? It seems so. When the current imbroglio is resolved (and it must be) some of us may want to thank, either genuinely or sarcastically, an old foreign friend in the Carter Center for the current noisy, but still democratic, wrangling over Article 161 (2). But fix the vagueness?

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