ChrisRam.net

Mr Anil Mohabir Nandlall evades my request (‘Not the rule of law’ SN, March 22) for him to state his opinion as to whether Guyana observes Lord Bingham’s eight sub-rules of the rule of law and instead immodestly invites me to examine his legal career: (‘Not a response to letter on mischief caused by prescriptive title’ SN, March 25). I leave an examination of his career to those with the interest, time and inclination to do so, but welcome the opportunity to examine his assertion that “the presence of the rule of law in a society… can be measured by an examination of the workings of the democratic institutions in the society.”

While Mr Nandlall and I may differ on their order of importance, we can at least agree that the principal institutions include the constitution itself, the president, the state, the parliament, national elections, local government elections, the judiciary, the Ombudsman, the Director of Public Prosecutions, the police force, the Audit Office and the Public Procurement Commission. Let us examine them.

1. A fundamental tenet of the rule of law is that all are equal in the eyes of the law while our constitution endows one person with the privileges and immunity of a monarch under the divine right of kings doctrine. Mr Nandlall’s hero Cheddi Jagan, had vowed to change what he and his party referred to as the Burnham constitution, a constitution that hangs like an albatross around the nation’s neck, notwithstanding the timid changes under the St Lucia Accord. If at least ten articles of the constitution have not been operationalised, do we need further evidence that even this “undemocratic” constitution is not working?

2. Few would dispute that over more than a decade, this President has routinely violated the constitution, the Fiscal Management and Accountability Act 2003 and the Procurement Act 2003, broke (tax) and bends (procurement) laws to help his friends; creates jobs for his political cronies whose sell-by date has long expired; heads an office where procurement takes on a special meaning; and who surrounds himself with persons not deserving of respect. In short, the Office of the President is the very antithesis of the rule of law and the constitution.

3. The state’s “supreme organs of democratic power” are spelt out in Article 50 of the constitution as the president, the parliament of which he is a part and of which he plays an important role in the appointment of the majority, and the cabinet which is an advisory body to the president, making the three organs largely embedded in a single individual. Is this Mr Nandlall’s concept of democracy and the rule of law and does it explain why the constitution is so frequently violated by the President with impunity, whether in relation to assenting to bills and the naming of constitutional commissions and office holders? Perhaps I can ask the learned counsel to explain the constitutionality of the President’s refusal to assent to Bill No.18 of 2000 dated December 15, 2000 and unanimously passed by the National Assembly on January 4, 2001. Let me remind him that this was no ordinary bill but one that sought to elevate certain articles from principles to fundamental rights for citizens. In any democratic country where the rule of law prevailed the President would have long had to resign.

4. And what about the National Assembly whose productivity is modest by any standard, whose priority does not see a flooding of agricultural land as a matter of urgent public interest, which regularly passes laws that are a violation of the constitution, whose members represent no one but a political party, who vote for bills they have never read or cannot understand and who receive generous duty-free concessions and qualify for pensions at the age of forty? And that protects at all costs a Minister who misleads the House about a small matter of $4B of public money!

5. National elections which are characterised by playing to ethnic and racial sentiments and insecurities (Babu John annually), patronage, bribing of sections of the electorate by the incumbent, misuse of state funds and justifying it as the privilege of incumbency, and political parties operating outside of a legal framework. Those things distort the fairness of elections and are a real threat to democracy as political debts have to be paid, often with tax immunity, special contracts and other favours.

6. I doubt that Mr Nandlall would consider the absence of local government elections since 1994 as anything but a cynical and gross violation of Article 12 which states that “local government by freely elected representatives of the people is an integral part of the democratic organisation of the State.”

7. The courts which are the guardians of the constitution and the citizens’ rights are hobbled by a law that takes away their independence while the constitutional requirement for consultation between the President and the Leader of the Opposition on the appointment of the head of the judiciary is bypassed by an acting appointment.

8. An Ombudsman, the people’s judge, has not been appointed for six years so that the poor have no avenue and opportunity for redress. That needs no comment, either about democracy or the rule of law.

9. And no discussion on the rule of law can exclude the police that in this major drug transshipment country cede their duty and responsibilities in drug case investigations; whose operational efficiency and independence are often compromised by a telephone call from the politicians; which selectively investigate a blog site critical of the government but refuse to act on another friendly to the government; which needed a drug lord to fight a crime wave; and which is involved in a struggle with its Minister as to who should and should not get a gun licence.

10. The Audit Office, the guardian of the public purse is handicapped by the acting appointment of an unqualified head and compromised by a conflict of interest involving its deputy. No wonder then that it cannot yet publish its 2005 flood report or the 2007 Cricket World Cup report; that it conveniently ignores the improprieties of the big-spending ministries and big ticket items in favour of the checking of vehicle log books and ineffective special investigations on poor people at the Palms and in receipt of pensions.

11. And even as we spend more and more billions on contracts of dubious benefit, quality and authority, the government has refused to establish the constitutionally mandated Public Procurement Commission so that Fip Motilall’s multi-billion dollar contract can pass through NICIL with its huge slush fund, and another multi-billion dollar contract is awarded to a Chinese company, Huawei, now involved in the Laptop scandal.

The litany of violations by these instruments of democracy and the rule of law is long and depressing enough to cause some to refer to Guyana as a failed state. I do not share that view, but rather consider it a dysfunctional state administered undemocratically, that facilitates, permits and protects illegalities and improprieties by a certain class. I am interested to hear Mr Nandlall’s explanation for these phenomena under a government that has been in place for eighteen years, and the reasons why he thinks the party of Cheddi Jagan is unwilling to introduce access to information legislation to give effect to Article 146 of the constitution.

Mr Anil Nandlall was one of the principal speakers when the National Assembly debated the end of provisions in the age-old law Title to Land (Prescription and Limitation) Act which allowed a person who has, without permission, occupied state land for more than thirty years to approach the court to grant title to that land. He followed that up with a letter in the press (‘Land amendment bill was promulgated to address a serious problem’ SN, March 16 ) which ends with the words “Guyana is a democracy where the rule of law reigns supreme,” and which conveniently invokes the name of Cheddi Jagan.

Mr Nandlall’s letter represents a view of democracy being only and all about five-yearly elections in which state resources can be used by the incumbent to be re-elected and where once in office, he is free to ignore constitutional requirements on local government elections, the appointment of an Ombudsman and the setting up of important commissions such as the public procurement commission; improperly accounting for and unlawfully using public funds; and enriching the re-elected party at the state’s expense as is increasingly happening in the twilight of the Jagdeo presidency. While wrong, that seems to be the democracy practised by Mr Nandlall’s party.

On the issue of the rule of law, I assume that Mr Nandlal is familiar with the Sixth Sir David Williams Lecture on the Rule of Law given by Lord Bingham of Cornhill. I would like to hear Mr Nandlall’s views on whether the state in Guyana observes the eight sub-rules of the rule of law spelt out and discussed by Bingham. For the benefit of readers I reproduce in the first person the third and sixth of these sub-rules and note that the sixth was actually highlighted (printed in bold) in the text of the lecture released to the public.

a) “My third sub-rule is that the laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.

b) “My sixth sub-rule expresses what many would, with reason, regard as the core of the rule of law principle. It is that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers.”

Against this background, let us now compare the law relating to land as it applies to one set of people – many poor – and to another – the rich and the powerful. With the amendment – or rather repeal of the law referred to above – a long-held right of a person who has occupied public land without permission for 30 continuous years to apply for title under the Title to Land (Prescription and Limitation) Act is being taken away. To buttress his argument in favour of the repeal, Mr Nandlall quotes Article 32 of the constitution which imposes a duty on every citizen to protect the property of the state.

Now compare this with what has taken place in Pradoville 2 where state property with legal and environmental importance has been expropriated by President Jagdeo for himself, other members of the ruling elite and those whose support they need. Let us remember too that Mr Jagdeo and the political ruling class received the same kind of benefit of state land in Pradoville 1 under Cheddi Jagan and which came with several covenants which President Jagdeo failed to observe. By what stretch of the imagination can this be considered consistent with the ‘rule of law’? Or does ‘rule of law’ have one meaning for the political elite and another for the poor?

I wonder whether Mr Nandlall, the professional attorney-at-law, would refuse to act for a client seeking representation under the doctrine of legitimate expectation who has openly and for decades occupied, often with the knowledge of the leadership of the party he serves, public property, investing millions of dollars on that property.

I wonder, too, whether Mr Nandlall the politician will now tell his party that they have to support the eviction of their supporters on the East Coast Demerara whom they courted prior to the 1997 and 2001 elections with promises of ‘certificates of comfort’ and the assurance that their situation would be ‘regularized.’ And as a politician, whether he has exercised his duty to defend state property when the state’s freehold land is given to a member of the party in exchange for that person’s failure to develop leasehold land in Berbice.

Finally, I wonder whether Mr Nandlall believes that similar to the citizen in Article 32, the state has a duty to protect private property and whether he cares that persons can lose their title to someone who has unlawfully squatted on their property for twelve years – or in some cases simply stating that they have done so, as Mr Nandlall might know.

Let me make my own position clear. I am no supporter of title by prescription – whether of private or public property. But I believe that anyone who preaches or defends one standard for the poor and the powerless and another for the rich and the powerful is engaging in hypocrisy and double standards.