The M&CC COI was designed to cause political mischief

Dec 17, 2018 Letters

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Dear Editor,
There are two BREXIT. One is the British peoples voluntary exit from the European Union; the other is Guyanese [the Kennard CoI Report which I will show is nothing but the Benjamin report (“BR”)]. It seeks to incite and provoke the involuntary EXIT (i.e. dismissal/termination) of certain targeted senior officers of the City Council (BR juxtaposed with EXIT gives the Guyana version of BREXIT). And by the Benjamin Report I mean this: that although on its face the CoI report shows it to be signed by its chairman, Retired Chancellor Justice Cecil C. Kennard OR, C.C.H, it lacks a Chancellor’s imprimatur.
Rather, it shows naked bias, the incredulity of trite and elementary errors of law, irrelevancies, misdirections, nondirections, the trivialization and generally the deniability of the Municipal and District Councils Act, Cap 28:01, a cavalier and callousness towards the City Council’s most senior officer (the Town Clerk) as he is scandalized and libeled, a startling finding of wrongful removal of Carol Sooba, and a plain misapprehension about the dismissibility or terminability of officers, so much so, that the view is inescapable and irresistible, that this Report could not have been drafted or compiled by a former Chancellor of the Judiciary, but rather by Sherwin Benjamin – The CoI’s secretary and legal officer; a little known lawyer, naturally not imbued with the qualities of a judicial spirit, temper and wisdom and evenhandedness. And I do not make these ominous reflections lightly.
Mr. Editor, when I wrote my previous letter (Guyana Chronicle, Sunday December 9th “City Hall CoI a comedy of errors”; Kaieteur News, Sunday December 9th “I have always suspected that this CoI was pure political mischief”), I did not have the advantage of a copy of the CoI Report. I now have the benefit of that Report. I have read it. The Sooba Influence, vengeance is palpable (readers must know she is a PPP/C member/representative in the LGC). Permit me, by direct verbatim reference to passages in it, to show by sheer force of logic, common sense and deductions, the bad faith, flippancy, and gratification of surrogated ill-will by its author, against some targeted senior officers, and in particular the Town Clerk.
FIRST, I refer to paragraph 375 where there is this portentous statement in relation to the Town Clerk viz “while it is the easiest of recommendations to make, this officer should be terminated and criminal charges should be laid against him in respect of his actions.
The SARA and the Guyana Police Force should lead a joint probe to ascertain the relevant criminal charges to be laid. In the alternative there are civil remedies, the LGC can approach the Court to grant orders to trace his assets and at the same time freeze same” WOW. Carol Sooba herself, might not have put it any more vengefully.
So, one must ask: where in the report is there evidence tending to show (criminal) unjust enrichment by Royston King; or of any conspicuous life style comparable to what Kaieteur News Columnist Freddie Kissoon characterizes as the “nueve rich” of Guyana. None.
And where in the Report is some auditor’s finding incriminating the Town Clerk. None. So the author suggests a fishing expedition by the SARA and GPF. Wow. But if the author was minded to be evenhanded, there is a much publicized material (of which the CoI must be taken to have become aware as it was prominently reported in the press contemporaneously with the COI) that the Town Clerk could not even complete the purchase of a modest $30M real estate.
He lost his deposit/down payment of $3M secured by loan from Citizens Bank (the embarrassment of his lost and impecuniosity is told in the follow-up Kaieteur News article of Tuesday October 9th, 2018 – “Lawyer confirms transport being processed”. Here is an extract from the KN article viz “However the lawyer” [i.e. the vendor’s lawyer Andrew Pollard] “clarified that although the transaction has started it was left at somewhat of a standstill as the Town Clerk may not have made all the payments on the property and King would have forfeited his down payment”. Surely, not the plight of a “nueve rich” you might think; or a person who has “misappropriated funds”! And this aborted purchase and forfeiture happened in 2017 – two years after he became Town Clerk. What is the reasonable inference? A greater scandal and incitement there cannot be.
SECOND, I refer to paragraphs 338, 352 and again 375. All three deal with incitement of terminability, as if it were a fait accompli. I do re-quote here part of paragraph 375 viz “while it is the easiest of recommendations to make this officer should be terminated ……” Putting it colloquially – “mouth open story jump out” This is incredulous. How could one be so cavalier and intemperate as regards another person’s career?
Even as SARA and GPF is invited to go fishing, termination is recommended. Is the Kangaroo court like proceedings at the CoI, a hearing on which basis a finding, and punishment of termination can justly be made? Or is it that Royston King is not entitled to due process of law, nor to the presumption of innocence?
The Town Clerk holding that high statutory office is not dismissible or terminable at will or pleasure of the LGC – is there prescribed disciplinary offences (the cosmetic useless references at paragraphs 384-387 to hypothetical disciplinary procedures only aggravates the misdirection). The LGC has absolutely no power to charge any Common Law offence or tort of “misfeasance” (see paragraph 376). Accordingly, I would describe the author’s recommendation at paragraph 376 about “misfeasance” as pure impressionistic rubbish, engendered by some seemingly reflexive, knee jerk evil disposition and dispensation to contrive and conjure up recommendations in their scheming for the Town Clerk’s removal. For the author that is the “easiest” to do!
THIRD, I briefly revisit the matter of the N.I.C.I.L disputed claim to the Sussex Street Wharf facility. In my previous letter I wrongly concluded (on the evidence of it not having been highlighted in the KN and GC articles) that the Town Clerk had been absolved and vindicated. I now refer to paragraph 388 viz “The wharf facility rented to Quick Shipping Inc. is not owned by the Council…” That (presumably a CoI finding of mixed fact and law) is a no-brainer.
The CoI has woefully misdirected itself. I have dealt with the CoIs utter jurisdictional disability to make Judge-like findings of mixed fact and law, in my previous letter. If a CoI be permitted to make findings of mixed fact and law on inadmissible hearsay evidence/material, there is no limit to which its recommendations, based on such findings, may be used to unjustly deprive officers of their offices/rights. That is a frightening monstrosity.
How then, could the author not apprehend this elementary constitutional jurisdictional disability of the CoI to hear and decide disputed land ownership? Moreover, it was fully articulated in my 17 pages written closing submission served on the Secretary on 9th November as attested by his signature on the return duplicate copy. Makes me wonder, if it was even read and considered. Here is my deduction: come hell or high water, by this N.I.C.I.L matter, the Town Clerk must be embarrassed, vilified, and brought into public ridicule and odium, even if it means the author’s own self-induced and self-inflicted embarrassment of a no-brainer.
The author must know that his vilification is pyrrhic only; the law and justice will ultimately absolve and vindicate the Town Clerk. And why does the author callously denies the existence of section 8A(g) of the M&DCA as inserted by the Municipal And District Councils (Amendment) Act 2013 (see paragraph 158); and why does the CoI, paradoxically, solicits an opinion from the Town Clerk (ag) to contradict the substantive Town Clerk’s interpretation of the M&DCA, and relies on her interpretation (see paragraph 155-157) that the Town Clerk has no power to lease the wharf, without the council’s approval first obtained.
Until and unless a competent court of law (which the CoI is not) gives a contrary interpretation, the interpretation and opinion of the Town Clerk (under and by the force of the SIXTH SCHEDULE of the M&DCA) as to his functions and power under section 321 of the M&DCA, is binding and final on the Council; and surely the CoI, must abide his interpretation, whether it entertains a different view (see paragraphs 166 & 325). If it apprehends the Town Clerk’s statutory power to be dysfunctional; on the Town Clerk’s interpretation as to the scope of that power, it can only recommend amendment to the M&DCA (ironically, the M&DCA was amended in 2013 by the insertion of section 8A(g) to solidify the then PPP/C Town Clerk Sooba management vires over the Council’s affairs.
FOURTH, I briefly mention the inflammatory matter of contracts. I refer to paragraph 336 viz “The documents also indicated that contracts were awarded to friends and associates of key officials of the Council …..” What rubbish! Does the author have Divine or/and psychic powers to know from a name on “the documents” who is friend of who! But moreover, here again, the author is in deniability and trivialization of the relevant provision of the M&DCA vis-a-vis section 70 (under the rubric “Interest in Contracts”) which clearly does not prohibit such contracts, but only requires disclosure and recusal from voting on them by the concerned councilor. If Councillors’ spouses are permitted under section 70 to have contracts with Council, then, a fortiori are “friends”. The authors’ lamentation and inflammatory remark is evidence of his bad faith.
FIFTH, the no-confidence motion matter. Here too, I had in my previous letter wrongly concluded that the CoI had absolved and vindicated the Town Clerk. What naivete on my part. I refer to paragraph 175, which is periphrastically worded viz “I recommend that the advice of the Attorney-at-Law Edwards, if accepted that the motion be sent to the LGC for the necessary action to be taken against the Town Clerk for his alleged wrongdoings. Additionally, it is my considered opinion that Mr. Edwards was acting on behalf of the Town Clerk and not the Council, accordingly, the Mayor ought to have sought independent legal advice on the issue (motion).
In any event, she did not deal with the motion as what was put to the Councillors was whether the advice of the Attorney-at-Law Edwards, should be accepted, which was totally wrong”. This is rubbish compounded with asinity. I have agonized about whether it deserves a joiner from me. This matter was comprehensively and impeccably dealt with in my 17 pages closing address. Suffice it to say that the author’s misrepresentation of the events which have happened in this matter is dishonest; his conclusion is vacuous. His convoluted diatribe explains his feeble attempt to discredit.
I repeat for emphasis, that the M&DCA (the Sixth Schedule) vests in the Town Clerk and the Town Clerk only, the exclusive power to give final and BINDING advice (legal) to the Mayor on such matter. Only a competent Court of Law in litigation before it, can find IN THE EXERCISE OF THE COURT’S INTERPRETATIVE POWER that the Town Clerk/Mayor acted wrongly on such legal advice, and misinterpreted and misapplied the M&DCA.
The CoI is not such a Court; neither is it permitted to foist and substitute its understanding on the Town Clerk by usurping his function; again it is wholly irrelevant as regards the competence of the Town Clerk’s act, whether the author of the Report has a different view (including some vacuous supposition about “bias”; “independent legal advice”). If the M&DCA as it is unworkable, the remedy lies in its amendment by Parliament. Has any been recommended? None. The author’s obsession to vilify and criminalize is not compatible with such recommendation.
SIXTH (finally) the pure outrage of the recommendation of some compensation payment to Carol Sooba (former Town Clerk) she not even having appeared before the CoI to testify under oath about anything (see paragraphs 388s, 277 to 278). What errant nonsense that on the basis only of Sooba’s “written statement” the author says “…. the only rational and logical conclusion I have arrived it is that she should have resumed duties as the Legal Officer… in the given circumstances one can only recommend that she be compensated for her wrongful removal from office”. I suspect that this recommendation, lacking as it does any basis in law, or fact, must be some considerable embarrassment to even the LGC. There was no such ToR. In a Court of Law, any such claim by Sooba would be summarily struck out, as bound to fail (In an action in 2013 – No 103 – M by Royston King challenging her appointment, Chang, CJ (ag) on April 10, 2014 ruled, quashing her appointment as being ultra vires the Municipal and District Councils Act, Cap 28:01). So her appointment was a nullity – ex nihilo nihil fit (out of nothing, can come nothing.
En passant I mention a fact that must arouse in any right thinking person, acute suspicion. It is this: The CoI Secretary and Legal Officer (and presumed drafter of the Report) hails from the same village of Fyrish Corentyne as Carol Sooba. Pause and ponder on the recommended windfall compensation payment on the basis of an inadmissible “written statement” – bias most foul, as Shakespeare might have written. Such indulgence of (uncharitable) philanthropic generosity (not at the author’s expense) but at the expense of the rate payers of Georgetown, is impermissible. So, again I ask: what is the reasonable inference to be drawn?
I end with this: bias is an insidious thing. It takes a judicial mind, temper and experience and wisdom to resist the human urge to be biased. If this Report was in fact drafted by the former Chancellor, most respectfully, I regret that the facilities of his judicial temper and spirit and experience must have abandoned him. On one possible view it was not. Guyana BREXIT must be thwarted – judicially if necessary. It is pernicious – a poisoned cocktail of gratification of ill-will, undisclosed surrogacy, and a desire to cleanse from the Council, officers known, or perceived to be Government supporters.
Yours,
Maxwell E. Edwards
Attorney-at-Law

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