There is no place for ‘harmonism’ in the Constitution

Dear Editor,

With each passing day, this government is demonstrating, with excruciating clarity, that it is incapable of operating within a constitutional construct in which the Constitution is supreme and where executive power must not only be exercised within the bounds of that Constitution but also that every action of the executive government must comply with and conform to the rule of law.

So, the President believes that because he grants a lease he can revoke that lease at his own whim and fancy and without any resort to the law. He believes that when recommendations come to him from the Judicial Service Commission (JSC) there is no obligation upon him to act upon them; that he can dilate and attempt to manipulate the JSC; that he can place his most peculiar interpretation to the crystal clear language of the Constitution and when his perverse interpretation is declared to be wrong by a judge of competent jurisdiction, he can flippantly say that that judge is entitled to his/her interpretation but he will hold to his; that he can invite the head of the Public Service Commission (PSC), to his office and offer him a “package” to resign and when that person refuses, activate a dubious process to remove him from office; that he can dictate to constitutionally independent service commissions how to perform their functions.

This authoritarian ideology is compounded by an Attorney General who argues, in case after case in the courts, that the President’s actions are not reviewable by the judiciary and cannot be challenged in a court of law. That this unparalleled compendium of jurisprudential ignominy has been rejected no less than five times over the last year, has neither dampened his enthusiasm nor edified him. This line of argumentation continues to be proffered in the courts unabated.

This brings me to the latest exhibition of constitutional heresy: Minister Harmon’s absurd and irrational attempt at justifying the President’s egregious directions to the Police Service Commission (PSC) to halt their consideration of promotions currently before the commission. That my colleague is a member of the learned profession exacerbates the travesty. It is as if all the lawyers in this government are ensnared in an impenetrable enchantment of obtuseness from which they are incapable of extrication.

So, Minister Joseph Harmon explains to the nation that the President issued the impugned directive to the Police Service Commission because he is in receipt of certain information that, “there is some action which is likely to take place that will harm or cause injury to the security fabric of this country…”

Firstly, this explanation lacks credibility; it sounds incredible and no explanation is offered which would enable the public to appreciate a nexus between this hair-raising disclosure and the list for promotions which are before the commission. In any event, labels such as “national security” have long been used by politicians as a convenient excuse to justify conduct which is otherwise inexplicable.

Most importantly, however, Article 226 of the Constitution does not permit such a reason as the basis or authority for its breach. The Constitution contains a systematic mechanism of provisos and other linguistic devices through which it expresses exceptions and conditionalities to its provisions wherever the framers wanted them to be expressed.

Unfortunately for Mr Harmon, Article 226, neither in its letter nor its spirit, affords “national security” issues, as a basis to derogate from its express stipulations. If the framers intended this, they would have so drafted the article. In short, Article 226 offers no place for harmonism as advocated by the Minister of State.

In the circumstance, the President’s directive to the Police Service Commission remains a most aggravated violation of Article 226 of the Constitution.

Yours faithfully,

Mohabir Anil Nandlall

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