Whether a matter is public or private law is one of function not form

Dear Editor,

My question to Mr Jerome Khan about Article 24 of the Government of Guyana-Ogle Airport Inc Lease Agreement has obviously touched his evolving political nerve. The last time Mr Khan sought to engage me in the media was in support of then President Jagdeo when he argued that Mr Jagdeo could use the provision of the Tax Act to plead exemption and immunity from other tax acts. Clearly, Mr Khan cannot be accused of inconsistency when it comes to defence of presidents, whatever party they come from.

I will leave aside Mr Khan’s political and personal rants to make five brief points:

  1. If Mr Khan did basic research, he would not claim, falsely, that I am currently or have ever been a member of the Working People’s Alliance.
  2. If Mr Khan did his own research he would not claim, again falsely, that I am the attorney at law for National Aircraft Transport Association (NATA).
  3. And even if I were, maybe Mr Khan could point to the relevant rule in the code of conduct for attorneys which precludes any attorney from seeking to correct, in the media or elsewhere, inaccuracies, deliberate or otherwise, about any person, including their clients.
  4. Whether a matter is a public or private law issue is one of function, not form. My knowledge is that this principle first surfaced in Demerara Turf Club [a private club] and Others v Phang in 1961 in pre-Independence Guyana. The authority for the principle across wider common law jurisdictions was established in two UK cases, one in 1985, and the other seemingly more cited one in 1986, known as the Datafin case. While Mr Khan refers to the case Michael Scotland v GEC, I am not convinced that he appreciates, among other things, the distinction which has to be made between public law and private law in a contract of employment dispute. In fact, the Michael Scotland case cites and explains the 1985 UK case. Let me repeat: the renaming of Ogle Airport is for the minister, not the company.
  5. If Mr Khan did his own research, he would not confuse Ogle Airport Inc with Ogle Airport. The former is a company and the other a public facility owned by the state. The facility has been leased by the government to the company to operate as a “public aviation facility”.

Mr Khan knows me well enough, including from telephone calls to me on legal and other matters, to know that personal attacks do not deter me. However, unless Mr Khan shows a better appreciation of basic facts and law, I will not engage him further.

I leave it to Stabroek News and Kaieteur News to decide whether they should have censored my letter and whether they should allow their letter columns to be a vehicle for peddling ‘cuss-outs’ and ‘cuss-downs’. They cannot complain about low standards in our society when they encourage such standards, however unwittingly.

Yours faithfully,

Christopher Ram


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