Dear Editor,
All law students trained in Guyana and the Caribbean learn almost immediately what Article 8 of the Constitution says. But a person does not need to study law to know what it says. Even a casual browser of the Constitution will come across Article 8 very soon after opening its pages.
Article 8 says, without ambiguity: “This Constitution is the supreme law of Guyana and, if any other law is inconsistent with it, that other law shall, to the extent of the inconsistency, be void”.
In a letter published in Sunday Stabroek on 14 June 2020, Mr Basil Williams SC says that the last recital of the recount order made by the Elections Commission on 4 May 2020, which he says is the law of the land, gives the Commission the power to resolve irregularities, discrepancies and anomalies occurring in the election process. In reality, the recital does no such thing. But even if it did, it would be inconsistent with the Constitution.
The Constitution tells us at Article 162 that, once registration is done, the functions of the Elections Commission are to exercise general direction and supervision over the administrative conduct of the elections.
Article 163, which follows immediately, gives the exclusive power to the High Court to determine whether an election has been lawfully conducted or whether its results have been affected by any unlawful act or omission.
Since it is an old and wise maxim of the law that if something is expressly stated, everything else is impliedly excluded, this must mean that the Elections Commission does not have the power to resolve irregularities, discrepancies and anomalies, even if it tried to give itself the power.
A law passed by the National Assembly with debate held in public which contradicted a provision of the Constitution would be void. It therefore stands to reason that the recount order made in private by the Elections Commission without oversight from the National Assembly or any other public scrutiny, but which Mr Williams nevertheless calls ‘the law of the land’, would equally be void for inconsistency with the Constitution if it gave the power to the Elections Commission that Mr Williams ascribes it to have done.
The only power the Elections Commission has is to count the votes and declare the results. Because we all know what the recount says, we also all know what that declaration must be if it is not to be unlawful and liable to be set aside.
Another thing that law students learn early on and treat with reverence afterwards is the dissenting judgment of Lord Atkin in Liversidge v Anderson, a 1941 English case.
In that case the highest court in England determined that an order which gave the power to the Secretary of State to lawfully detain a person if he had reasonable cause to believe certain facts actually meant that he could detain a person if he felt he had reasonable cause to do so, regardless of the objective facts.
Lord Atkin did not agree with the majority. He methodically went through the law to show how ridiculous an interpretation the majority was making. To hammer his point home in concluding, he said “I know of only one authority which might justify the suggested method of construction: ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’”
Mr Williams seems to be channeling
Humpty Dumpty.
Yours faithfully,
Kamal Ramkarran
