The AG is the principal legal advisor to the government not the state
Even as one who still spends time teaching, I find it hard to engage Mr Anil Nandlall, Attorney General, not only because of his proclivity for misunderstandings and misrepresentations (on the Budget cuts, on the Lotto Funds), but also because his frequent pronouncements show extremely poor acquaintance and at times no acquaintance, with the finer points of the Constitution, and because of his chameleonic quality of rearranging facts to fit his circumstances. There was a convergence or, to use one of Mr Nandalall’s words, a concatenation, of these qualities in the recent news items in which he sought to arrogate for his office, authority over Bills passed by the National Assembly (SN, February 3, 6).
Let me recap the issue of the Bills that exposed Mr Nandlall and caused him to restate/reconfigure his story three days later. He told Stabroek News on February 3, 2013 that “The opposition bills have not reached the Attorney General’s Chambers… for [his] inputs.” Up comes the Clerk of the National Assembly saying not true: the Bill was there ever since. Cornered by facts, Mr Nandlall’s story changes to, “okay, but not on my desk” (February 6).
Meanwhile, by letter of February 4 in the press I noted for the benefit of the public, and hopefully of Mr Nandlall, that a Bill passed by the National Assembly is not an opposition or government Bill but that of the National Assembly. And that contrary to his claim of jurisdiction over Bills passed by the National Assembly, the Constitution and the Standing Orders of the National Assembly vested certain powers and duties only in the Clerk of the National Assembly (custody and despatch to the President), the Speaker (to correct patent errors), and the President (to assent or explain). While it is evident that Mr Nandlall was unaware of these finer points, Guyanese expect their Attorney General, whoever s/he might be, to appreciate the dangers of tampering, or of delaying tactics by a political appointee, thereby frustrating the constitutional requirement for the President to assent or explain within twenty-one days.
But here again Mr Nandlall’s elusive qualities come to the fore. Here are some of his unbelievable responses. He explains his loose nomenclature of opposition Bills as “descriptive labels … widely used in parliamentary Standing Orders the world over.” Mr Nandlall is obviously less informed about Guyana than he is about the world over, since the “descriptive labels” are used in Guyana only when a Bill is “introduced” as a Private Member’s Bill (Standing Order 51); or “presented” on behalf of the government (Standing Order 53). Since Guyana by itself is proving to be so onerous to Mr Nandlall, it is recommended that he leaves “the world over” to those who know a thing or two about it.
Caught as a central violator of the provisions of the Standing Orders and the Constitution, Mr Nandlall scurries for refuge in what he calls conventions “from the colonial days.” A little learning is truly a dangerous and damaging deficiency. In Mr Nandlall’s “colonial days,” there was no 21 days limit and Bills were required to be assented to by the governor, who was not a member of either chamber, called the Senate and the Legislative Assembly. Mr Nandlall might wish to refer to Dr Shahabuddeen’s discussion on the role of the governor under the 1961 Constitution on page 546 of his book Constitutional Development in Guyana 1621-1978. Under the 1980 Constitution there is a 21-day deadline for the President to assent or explain, while Article 51 of the Constitution makes the President an integral part of the Parliament.
But more importantly, I hope for Mr Nandlall’s sake that he would not argue, even in a corner shop, that a convention of limited historical validity can trump Standing Orders recognised in Section 9 of the Constitution Act, or the Constitution itself which is the supreme law of Guyana. There are many learned articles, textbooks and treatises (Dicey, Wheare, Jennings, Phillips, Fiadjoe, etc) on the place of conventions in any constitutional environment, whether one having a formal written constitution or one governed by an uncodified constitutional regime. They are easily accessible and comprehensible to the average person.
While asserting a convention violative of the Constitution and the Standing Orders as “having great utility,” Mr Nandlall’s conscience suffered no discomfort in his recent rejection of one of the most ancient parliamentary conventions, that resignation should follow a vote of no-confidence. And let me share with Mr Nandlall another convention which his government has rejected out of hand: that while a head of state can either assent or withhold assent, by convention, assent is always granted and not withheld. I now wait to see whether Mr Nandlall will compare this with the veto. He just might…
Shockingly, Mr Nandlall does not seem to know the basic functions he is appointed to perform. In order to buttress his misconceived assertion of authority over Bills passed by the National Assembly, he claims that he is “the principal legal adviser of the state apparatus.” Mr Nandlall is not. In fact, he is the principal legal adviser to the government [emphasis mine] (Article 112 of the Constitution). Maybe the Interpretation and General Clauses Act does not provide a definition which could help Mr Nandlall, but surely Article 106 of the Constitution dealing with the resignation of the “Government” should have guided him. In management there is an axiom that if you do not know your job requirements, you cannot do it.
All in all, Mr Nandlall’s positions are so devoid of rationality or consistency that he forgot that only recently he took the Speaker of the National Assembly to court. By his latest definition of his job as Attorney General, the man has taken his own client to court!
As we have come to learn, attorneys general are no longer blessed with the same judgment on the wisdom of silence as those of yesteryear. Hopefully, Mr Nandlall will learn as he goes.
Let me end by saying that I believe that the perpetuation of much of what we as Guyanese receive daily from the government and the Attorney General is a result of a largely ineffective political opposition and its battery of lawyers. Let us hope that they will not remain silent on this issue which involves a Bill they introduced and which involves both substantive and procedural constitutional points. And I hope too that the Speaker of the National Assembly Mr Raphael Trotman will now accept and carry out his duties in relation to Bills, seeking whatever advice and assistance he may require.