Vexatious litigation and confusing concepts…The Law is not an ass

Jan 01, 2020 Letters

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DEAR EDITOR,

Mohabir Anil Nandlall has courted becoming a vexatious litigant/advocate. His last act of vexation about Cabinet having to resign, was with brutal aptness, albeit, perhaps, euphemistically, criticized by the learned Chief Justice (ag) as “wholly misconceived, vexatious, and an absolute abuse of the court”.
I will argue that Counsel has become a vexatious letter writer, abusing his right of comment on matters of public interest. I refer to Counsel’s December 29, 2019 letter in another newspaper under the caption – “This gov’t has no standing in relation to the planned compulsory acquisition of land for bridge”.
With his accustomed degree of politicization of constitutional matters, Nandlall has yet again made a mockery of our constitutional law. And here is the compelling evidence.
First, Nandlall writes “…. These lands…. are being compulsorily acquired under the provisions of the Acquisition of Lands for Public Purpose Act, Cap 62:05 Laws of Guyana….The rule of law naturally, mandates that any law which authorizes the CONFISCATION of property must enjoy strict and scrupulous compliance…. Since the rule of law frowns upon any concept that facilitate the State compulsorily acquiring private property such a process must only be embarked upon as a matter of last resort….” (emphasis not his, but mine).
A learned person concerned to write with constitutional efficiency, would not confuse the concepts of “compulsory acquisition” under the Acquisition of Lands for Public Purpose Act, Cap 65:02; with “confiscation”. That is heresy.
Confiscation is not compensatable; compulsory acquisition, is. (My learned friend is referred to “the reported case of The Attorney General of Guyana vs. Caterpillar Americas Co. (2000) GLR 313 at page 319) The notion of the rule of law permitting acquisition of land “only as a matter of the last resort” is as novel, as it is in supportable by case law, or general principles.
Acquisition is permissible, if there is a sufficient public purpose (see the Privy Council case of Government of St. Lucia v. Williams). Nor, is Counsel’s novel “last resort” proposition deducible from the CCJ’s judgment in the Andrew James Investment Ltd case, in which the Acquisition of Land for Public Purpose Act cap.65:02 was considered.
Secondly, his revisit of his “caretaker government” viewpoint. His instant arguments, are as feeble now, as they were in July 2019 soon after the CCJ had on 12th July, 2019 delivered its “Consequential Orders” ruling in the NCM appeals (see “Text cited by CCJ identifies broad restraints on caretaker gov’t” SN Sunday July 14, 2019)
I responded, then, with an Op-Ed in the Guyana Chronicle, Thursday, July 18, 2019: “Interim Government vs. Caretaker Government”. Here are some extracts presented in one continuous reading viz-” … has Counsel no respect, or reverence for article 8 of our constitution?…. the defector Charrandass Persaud… was duly replaced as a government elected member of the National Assembly by Barbara Patricia Pilgrim sworn in on 3rd January, 2019 and thereupon this government restored its majority in the National Assembly…The APNU+AFC Government… is not legislatively some feeble government seeking refuge in prorogation. All the plenitude of its Executive and its legislative powers it assumed on 15th May, and 10th June, 2015 respectively are extant …
What would be “void” under article 8 is Peter Hogg’s parameters to the extent they conflict with the wording, tenor, or spirit of articles 89, 99, 92 and 156.
It is one of the curiosities of our Constitution that article 156 effectively enables a NCM-defeated government to both politically, and constitutionally sanitize its membership in the National Assembly and secure a restoration of confidence in the government. … Again I say I have stirred these points to raise public consciousness about the hyper exaggeration of negativity by propagandists over the CCJ’s adumbration of caretaker government”
I have no reason, nor have I been shown any by any reply to my Op-Ed, to disavow any of those extracts. I would only add now, that Professor Peter Hogg’s writings on which Nandlall places so much reliance was articulated per incuriam article, 156.
Thirdly, the legal maxim: “ex nihilo nihil fit (out of nothing cometh nothing)” (quoting Nandlall) can have, and has had, an unwitting boomerang effect.
Even after the PPPs application to the High Court for an Order for Cabinet to resign was thrown out by the learned CJ (ag), Nandlall (who was the lead Counsel in that frivolous and vexatious Application) has persisted that the APNU+AFC Government’s “tenure expired on the 19th September 2019” (quoting him).
My reading of our Constitution tells me that there is one, and only one, constitutional method of a Government’s tenure becoming expired: it is by General and Regional Elections (GREs), consequent upon the dissolution of Parliament. Any other expiry would be an extra-constitutional method.
The obvious question to Nandlall, then, is this: is the March 2nd, 2020 GREs Proclamation by the President, David. A. Granger, that of a President whose tenure expired on September 19th, 2019? If his answer is yes; then my follow up question is: does the Constitution, rule of Law, permit such a President to issue Proclamations to dissolve Parliament, and/or appoint a date for GREs? Would Nandlall argue that those Proclamations are unlawful and made by a President without “standing”; the PPP/C should boycott the 2020 GREs! (Ex nihilo nihil fit has boomeranged Anil).
Fourthly, the simple constitutional truth which must be told, is that not even during the eight (8) short lived days of political treachery (i.e. 21st December, 2018 to 02nd January, 2019) has the opposition PPP/C ever had a majority of 33 seats in the National Assembly. It was/is (and it remained until parliament was dissolved on 30th December, 2019) the APNU+AFC Government that at all times had, and has, the majority of 33 Seats. Readers, do not confuse a vote (as happened with Charrandass Persaud on 21st December, 2018) with a seat.
I say unhesitatingly, that 33 seats majoritarian ability of the APNU+AFC Government is the very antithesis of caretakership disability. When Charrandass Persaud voted on the 21st December, 2018, he (and that seat) did not become, or convert, as if by some constitutional magic, into a PPP/C member, within the conceptions of our constitutional law. He was, and remained, an APNU+AFC MP until his recall, and replacement by Ms. Pilgrim on 03rd January, 2019. By what constitutional logic can such a situation amount to caretaker?
I end with this: unless he is a pretender to strict constitutionalism and rule of Law, my learned friend should be advising his political mentor to institute, yet another (vexatious) action in the High Court to have the Proclamations declared unlawful!
The Government’s “standing”, with respect to the Demerara River Bridge, and those Proclamations, are inseverable in point of constitutional law. The Law is not an ass.
Regards,
Maxwell. E. Edwards

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