Bringing the constitution into focus

Sep 27, 2018 Letters

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Dear Editor,
In June, article 9 of our Constitution came into very sharp focus at to Caribbean Court of Justice in the so called Jagdeo third term limit case. The present machinations, contrivance and comedy of errors in the appointment by the Local Government Commission, of a Commissioner to “probe City Hall” has again brought into focus, Article 9.
And, in spite of denials of “political agenda” by LGC member Andrew Garnett (Guyana Chronicle September 19, under caption “No political agenda …LGC says as Justice Kennard sworn in to probe City Hall”,) the question now looms whether the LGC, has become a facilitator, aider and abettor of the very mischief its establishment was intended to prevent – the politicization of local government officers (LGOs).
I express no opinion. But, is it sheer coincidence that (as if on cue acting in a scene in Shakespeare’s political masterpiece- Julius Caesar) the opposition Leader (Jagdeo) has at his press conference heavily politicized this CoI by pointedly making it an impending November 12, Local Government Elections propaganda campaign issue?
Surreptitiously, he heaps praise on the LGC (which in their time in government they did all kinds of shenanigans to prevent it coming into existence) for ordering this inquiry; and at the same time criticizing the Hon. Minister of Communities, who Jagdeo says “shielded the Mayor and Town Clerk” (“Bulkan protected transgressions at City Hall- Opposition” KN, Monday September 24th).
But if shielding has happened, it would be, from the effects of the endemic bankruptcy which the 23 years of the PPP/C government by deliberate acts of frustration of Council’s initiatives and efforts to generate revenue, caused to the City Council.
As regards Article 9, put briefly, my case is this: the LGC is not an elected body. The Mayor and Councillors of the City of Georgetown is an ELECTED body, constituting the peoples “representatives” as provided for in the super entrenched Article 9.
The provisions of the Local Government Commission Act, 2013 [LGCA] which purports to strip and take away from the people`s representatives (i.e. the elected Mayor and Councillors), the governance functions over the city of Georgetown conferred on it by the Municipal and District Council Act, Cap 28:01, [M&DCA], and, entrust them to the unelected LGC, is inconsistent with, and repugnant to article 9, and under the supremacy provisions in article 8 of the Constitution, void to that extent.
The electors/residents/constituents of the city of Georgetown are entitled to say: is not our representative; we elected a Mayor and Councillors; they are our representatives.
The signs of tyranny are ominous, and I have stirred this point. So I turn to the main purpose of this letter: the question of the LEGALITY of the CoI.
I submit that the LGC had, and has, absolutely no power or jurisdiction to appoint any Commissioner. This appointment is as initio (ie in the beginning) incurably bad.
So, here is how the comedy of errors in the appointment as a Commissioner retired Chancellor Cecil Kennard has happened. FIRST, section 14 of the LGCA enables and authorizes the LGC ITSELF (the operative words are “the commission”, and “before it”) to “initiate and conduct investigations into the activities of any local government organ …” But by section 19 the LGC can delegate this investigation, but only to a “LOCAL GOVERNMENT ORGAN”.
The commissioner Cecil Kennard is not a local government organ within that term in section 19. SECOND, the LGC is not a creature of the M&DCA. It has no power under the M&DCA.
The LGC cannot act in vindication of the power conferred by the M&DCA on the “MINISTER” (presently Hon. Ronald Bulkan, Minister of Communities) under the Eight Schedule to appoint a Commissioner for a CoI.
The said Eight Schedule, is not repealed; it is in full force and effect (see section 33 of LGCA).
THIRD, regulation 1(4) of the Eight schedule makes it pelucidly clear that the appointment of a Commissioner there under by the Minister must be published in the “GAZETTE”.The publication in the OG of 22 September, 2018 (Legal Supplement B) is self evidently not about any appointment by the Hon. Minister.
FOURTH, the doctrine of ultra vires (i.e. outside the powers/functions) is just as applicable to the LGC, as it is to the City Council. And ex nihilo nihil fit (i.e. out of nothing, can come nothing).
The ultra vires hurdles facing the LGC (and by extension it’s appointee-retired Chancellor Kennard) in this matter are insurmountable. The illegalities are incurable.
Turning now briefly to press lynching. This has intensified. I notice that Freddie Kissoon in his “The Freddie Kissoon Column” has joined the media lynching of the Town Clerk (“The rulers of this land thinks the citizens are imbeciles” KN 2018-09-24).
How could he, as am intellectual, wallowing like a slimy eel in the gutter of sensational journalism, conduct such press trial-persecution and ill speaking against a family man, a career person!
Is his a fair and balanced comment? I anticipate he will reply, and when he does, I will argue my case as to why his thesis that the CoI is an APNU vote catching strategy, is utter rubbish, asinine and nonsensical, and against the weight of reason and logic.
And as to the KN editorial of Tuesday, September 25 “People Are Not Fools”, it suffices to say Et tu Brute. The GC Editorial of September 25th “Municipal taxes” is poignant, timely, balanced and fair as, is Earl Hamilton’s letter “Another Jagdeo attempt at cheap politics” GC, Wednesday, September 26th.
One more point: ToR “B” of the CoI as published in the OG, is specifically about the no-confidence motion against King that was disallowed by the Mayor.
So, let me make full disclosure: I am the Attorney-at-law by whose “Legal opinion” the City Council was guided, and acted. It was not some secret document. It was read out by the Mayor at the meeting. What is there to be investigated or examined?
The Council doing the obviously right thing seeking legal advice? The relative meager fee I received? My relation to an APNU Councillor? Has any lawyer been bold enough to challenge its legal soundness, erudition and impeccability.
I am not even remotely related to the Town Clerk. The motion was put on the statutory meeting agenda by the Town Clerk and dealt with according to the provisions of the M&DCA including applicable standing orders, it was not evaded. And further I say not.
And as to contracts investigations, the M&DCA has elaborate provisions as to disallowance and surcharge by Auditor. The learned Commissioner cannot appear to be impinging on the Auditor right/duty; and arrogating a power that is the Auditors. This is contrary to section 13 (5) of the LGCA.
Why not cause an audit to be done as to whether in all the circumstances (e.g. bankruptcy of the Council), contracts were awarded “contrary to law’’. And further I say not.
And as to the headline news Quick Shipping Inc. Lombard Street lease matter, the boundary of the Council Area westwards ends “by the Demerara River” as per the First Schedule of M&DCA.
Highly technical issues of disputed ownership by NICIL are involved. And further I say not. There is case law of the highest persuasive authority, that the generalization of ToR (as in A (V) and “C” as published in the OG) renders an appointment ultra vires and invalid. And further I say not.
Yours truly,
Maxwell. E. Edwards

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