Making a mockery of our constitutional law

Nov 16, 2018 Letters

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DEAR EDITOR,
In the good Book it is written: “No one can serve two masters for either he will hate the one and love the other, or he will be loyal to the one and despise the other” (Matthew 6:24). With his pantomime with politics, it is that biblical injunction that Anil Nandlall (in his quandary of serving two masters – the law and politics) ignores to his embarrassment.
With obdurate incredulity, he makes a mockery of our constitutional law. He writes that “the Minister’s takeover of the Berbice Bridge is wholly unconstitutional” (KN, Sunday November 11 “This entire episode is a staged artifice designed to excite political sympathies”. SN Sunday November 11 “I maintain Minister’s takeover of bridge is wholly unconstitutional and an artifice”).
He is wrong. Counsel’s understanding of article 142 is extravagant nonsense, seemingly induced by his obsession to be politically correct, convenient or expedient.
FIRST, even as one recognizes the rule of generous interpretation, article 142 of our Constitution does not end with the words”: “… payment of prompt compensation.” Relevantly, there is the rest of article 142 that Counsel appears to have completely ignored or disregarded, in his loyalty to “politics”. Relevantly, article 142(2) provides: “Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of the preceding
Paragraph” – {i.e. paragraph 142 (1) which ends with the above quoted words – “ prompt payment of compensation”]” (a) to the extent that the law in question makes provision for the taking of possession or acquisition of any property – (iii) as an INCIDENT of a … CONTRACT, grant, permission, or licence;”.
And article 142(3)(iii) relevantly provides thus: “Nothing in this article” [i.e. article 142 as a whole] “shall be construed as affecting the making or operation of any law – (iii) for the compulsory taking of possession in the PUBLIC INTEREST of any property or… any interest in or right over property where that property, interest or right is held by a BODY CORPORATE established directly by law for public purposes in which moneys provided by parliament… HAVE BEEN INVESTED”.
It is an unarguable fact that the BBCI was established (i.e. incorporated under the provisions of the companies Act, Cap 89:01) for the construction and operation of the Berbice River Bridge (BRB) for the public purpose of providing public transportation facility on a commercial basis; and that moneys provided by Parliament have been invested (Government part equity financing; and N.I.S over time has been the recipient of money provided from the Consolidated Fund) in its construction.
So, invoking and applying article 142(3)(iii), the making and operation of the Minster’s takeover Order, cannot, in the events which have happened in this matter, be unconstitutional. The making and operation of that Order fails squarely within article 142(3)(iii). Nandlall’s arguments completely ignore this “constitutional truth”.
Turning to article 142(2)(a)(iii). Is there “any law”, “law in question” as a fact? Yes – the Berbice River Bridge Act, Cap. 51:06. (BRBA). Does the BRBA (given its presumption of constitutionality) “makes provision for the taking of possession or the acquisition of any property”? yes – section 11. Is there as a fact some relevant contract between the Government and the Berbice Bridge Company Inc. (BBCI)? Yes – this is an undisputed fact (the “Concession Agreement”).
Is the taking of control of the operations on the Berbice River Bridge (BRB) an “incident” of that contract within the purview of article 142(2)(a)(iii)? I submit yes. Taking “possession” (assuming without conceding that the function of maintain and control operations of the BRB is “property”) by exercising BBCI’s functions of maintenance and control over the BRB is [quite apart from a statutory right and duty performed by order made under section 11 of BRBA], also a legal consequence that flows from the very fact that government is a party to that contract and there are certain obvious constitutional responsibilities and duties which inheres in any Government (which our constitutional law or jurisprudence embraces) to take Executive action (preemptive or ex post facto) as are necessary in the public interest, for public safety, or order, and the “necessities of Government” (AG of Guyana V. Caterpillar Americas Co. (2000) 62 WIR125 – Court of Appeal – Minister’s Order under the Public Corporations Act, 1988 temporarily depriving the company of its contractual right to moneys due and owed to it by state entity, not unconstitutional).
I place heavy reliance on this Caterpillar Americas case. Self evidently, it is for the Government–of–the–day (and not BBCI) to decide the existence of such public interest necessities. And as any student of constitutional law knows, the public interest [in terms of article 142(3)(iii)] is paramount and overrides any private interest or right (such as the nongovernment shareholders in BBCI have).
And for the benefit of the layman reader, this is what the phrase “incident of a contract” in terms of article 142(2)(a)(iii) means: it is not an express term of the contract, it is a legal consequence which flows from the existence of the contract; even though neither party may have considered that legal consequence when making the contract. (the learned reader is referred to the analogous case of Ooi Boon Leong V. City Bank NA(1985) LRC (Comm) 336 (PC).
This constitutional overriding public interest right, where Government is a party to a contract, is well established by decided cases such as Commissioners of Crown Lands V. Page (1960) 2QD 274 which most probably influenced the draftsman drafting article 142(2)(a)(iii)], and 142(3)(iii).
So, the takeover or “seizure” (Nandlall’s word) falls squarely within article 142 (2) (a) (iii); and 142(3)(iii) and on this ground alone it is plain that it is not “wholly unconstitutional”. There is nothing that is unconstitutional about the making or the operation of the Gazetted “Berbice River Bridge (Public Safety) Toll Order, 2018 (what Nandlall calls the “compulsory acquisition”, even in spite of its manifest temporary intendment).
“Public Safety” is but a variant of “Public interest”. Public Safety is not a homogenous/monolithic constitutional conception. It embraces in its generality, myriad connotations and particularities, amounting to safety considerations.
SECOND, the BBCI has no vested, absolute right to increase tolls as it sees/thinks fit; nor does it have some vested right to some MINIMUM toll which is above the present toll it charges. So, in this regard, it can have no property protected by article 142 (1) not to be deprived of the toll increase it desires; nor the contingent/conditional contract right to control operations.
This is the crux of this matter in its constitutional aspects (about it being some political “artifice” I care not, and expresses no opinion). The BBCI has no right to toll increase but what the Minister permits it (under the BRBA) to charge.
Article 142 does not protect such a non vested right or expectation, or hope (The learned reader is referred to the Barbados constitutional case of (Gladwyn) King V. AG (1993) 45 WIR 50 PC). So, even if article 142(1) stood alone (i.e. without article 142(2) and 142(3), Nandlall’s argument would fail. It is perfunctory, unmeritorious and untenable. It is against the weight of case law such as King.
THIRD, (here I am merely stirring and not necessarily relying on this ground) the novelty of the issue of pure constitutional law, or mixed fact and law, of whether a co-venture is amenable to allegations of a breach of article 142 by a joint venture party (in this case Government).
Can the Government party, in both fact and law, deprive itself of its own property even as a part owner? What is it, in evidential, ascertainable fact that is contractually owned by the BBCI (even as the “concessionaire”) to the exclusion of the Government, and of which the Minister’s Order has deprived BBCI and/or private shareholders?
Is not the “property” (i.e. the BRB and its operations), one and indivisible as among the co-venturers? I consider it is, in any public – private joint venture as the BRB is. (The reader is referred to an interesting and informative letter by Rudolph Singh (KN Friday November 9, 2018 “Battle for the Bridge – the majority wants the Government to win this one”).
Let us be unequivocally clear about this: the Minister’s Order does NOT touch or concern shareholding in BBCI, or shareholder’s rights, individually, such as dividend rights etc.
I end with this: Nandlall is plainly right when he writes as regards the Minister: “… only he is authorized by law to implement tolls”. Such statutory authority cannot be, and is not the “property” of BBCI. Nandlall having referred to the Caterpillar Americas case in his letter (albeit just en passant) and that Caterpillar case being decisively and soundly against his arguments, it is nothing but deception of a gullible layman readership, and intellectual dishonesty for Counsel to argue that the “takeover” is “wholly unconstitutional”. Counsel must know that Caterpillar Americas cannot be departed from, or overruled by even the present Court of Appeal. Only the CCJ can overrule Caterpillar Americas. Will it?
Yours,
Maxwell E. Edwards

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