Op-Ed: A Government of men and not laws

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Below is an Opinion Editorial by the former Attorney General and Minister of Legal Affairs, Anil Nandlall:

The second President of the United States of America, John Adams, once described his Government as “a government of laws, and not of men.” The philosophy which underpins this statement is the foundation of modern democratic governments. Its antithesis are political dictatorship; authoritarianism and anarchy.

Each passing day exposes both, at a philosophical and practically level, this Government’s constant battle to comply with our fundamental law, the Constitution. There appears to be a deep-seated ideology embedded in this Government which violently collides with that ancient British adage, nay truism, “ye maybe high. But ye is never higher than the law.” It is only that type of innate mentality which can explain the constant and continuous assertion in the Courts of this land that Presidential actions and decisions are not reviewable by the Judiciary, although the Constitution is supreme and therefore, the Presidency is but a creature of the very Constitution.

That such a concept, which owes it jurisprudential genesis in the Royal Prerogative, has been rejected half a century ago throughout the British Commonwealth on the basis that is has no place in a legal system predicated upon a doctrine of constitutional supremacy (as ours is), coupled with the fact that our Courts have overruled such a plea every time it has been raised, seem not to daunt the Attorney General. In fact, in the case filed against the appointment of the new Chairman of the Guyana Elections Commission (GECOM), the contention is elevated to even greater untutored heights. The argument is that the Judiciary will be violating the Doctrine of Separation of Powers were it to review the President’s decision!

It is this ideology which blinds a Government to the clear language of the Constitution because it cannot fathom that the Executive President, the fountain of all powers, is obliged to choose a person from a list of names submitted to him by the Leader of the Opposition. This school of thinking perceives such constitutional requirement as an unnecessary shackle on the “omnipotence” of the Executive Presidency.

It is the same kind of philosophy which drives the instinctive remark that a Chief Justice’s Ruling, is her own opinion and therefore, not binding on the President. It is a similar thinking which manifests itself in formal letters being written by Ministers of the Executive, giving directions to independent constitutional commissions!

Those consumed with such an ideology will always view the Constitution, the laws, independent oversight bodies and similar mechanisms, as hurdles and obstacles. Hence, the constant attempt to violate and undermine them. So in the Parliament, Ministers, in violation of all principles known to parliamentary democracy and of the spirit of the Constitution itself, chair oversight Committees.

This occurs in no other democracy in the British Commonwealth. The Minister of Finance unilaterally cutting the budgets of independent constitutional agencies on the floor of the National Assembly and the vilification of a Judge on the Bench by the Principal Legal Adviser of the Government, are all actions which manifest this ideology.

the Exxon Mobil Contract

Such thinking cannot tolerate accountability and transparency. Authoritarianism aside, the sheer arrogance, which such a philosophy breeds, militates against such concepts. The persistent refusal of the Government to disclose the ExxonMobil contract is another striking exemplification of this mentality. There have been repeated public demands for this document to be made public, dating back several months. This call has been ignored. On almost every occasion that the call was made, the response of the Government has been different. The first reason advanced for the non-disclosure was that a law assented to by President Jagdeo prohibits such disclosure. This contention came from Minister Raphael Trotman. In a Press Statement, which I issued on the 12th day of September 2017, I debunked this contention. I pointed out that no such law was assented to under the Presidency of Mr. Bharrat Jagdeo. Further, I explained that there is no such prohibition in the laws of Guyana. I also drew attention to Section 4 of the Petroleum (Exploration and Production) Act Cap 65:04, which expressly authorizes and mandates the disclosure of the contract. No one, thus far, has challenged my interpretation.

Again, the calls for the disclosure of this contract have recently resurfaced. Again, the Government is obstinately refusing to disclose, although the law compels them so to do. The latest argument from the Government emanates from the “Public Affairs and Communication Officer” of the Ministry of Natural Resources. In this latest release, Minister Trotman now shifts blame for the non-disclosure away from himself and places it at the foot of Cabinet and the Government. However, this does not absolve the obligation which the law imposes to make this disclosure.

Here one sees another manifestation of the philosophy to which I have referred above. Minister Trotman is, maybe of the view, that if he shifts the obligation to Cabinet and the Government then the legal duty to disclose will disappear. This is so because of that deep-seated instinctive mentality that Cabinet and the Government are beyond and above the law. The legal truth is that Cabinet, like every other organisation or department in this country, is bound by the law. Additionally, under Article 106 of the Constitution, Cabinet is also collectively responsible to the Parliament. This is obviously the next forum, which will have to be utilized to secure a copy of this document. However, with due regard to the Government’s track record in the National Assembly, I am not optimistic that a request, even at that level, will yield fruit.

Free and fair elections remains a nation’s only recourse against a Government driven by such ideology.

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