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Play it again, Ramesh
December 31, 2000
By Denis Solomon
THE Attorney General’s totally uncalled-for request to the court to intervene “as the guardian of the public interest” in the hearing of the application by Farad Khan and Franklin Khan to bring an election petition against “Gypsy” Peters and Bill Chaitan strongly suggests that he is preparing to do in this case what he did in the case of Evelyn Ann Peterson and the Chief Justice.
In that matter, Ramesh, acting in his capacity as the nominal defendant in all actions brought against the State, immediately conceded the case to Peterson, without consulting the real defendant, namely the Chief Justice, with whom he was known to be at daggers drawn. The Chief Justice then had to plead with the court to allow him to be represented, as he was not officially a party to the action.
An application for leave to bring an election petition (known as a “representation petition”) is heard ex parte. This means that the other parties are not represented. In fact there are no other parties, since by definition the action has not yet been brought, and, if the request is denied, will not be. Despite this, both Ramesh, “on behalf of the State,” and Fenton Ramsahoye, the attorney for Gypsy and Chaitan, asked to be allowed “to assist the court”.
The judge pointed out that the court needed no assistance and had asked for none. But as a courtesy he agreed to the request. However, to avoid delay in a hearing in which speed is of the essence, he gave the attorney from Ramesh’s office and Ramsahoye one hour to prepare their submissions. Both declined, and the application was granted.
Gypsy and Chaitan immediately brought constitutional motions against the State, alleging that the court’s granting of leave to bring election petitions is an infringement of their right to protection by the Constitution. One of their grounds is that the detailed regulations for the conduct of such petitions have never been drawn up, and no action can therefore be mounted.
Since the task of drawing up these regulations falls to the Rules Committee, which is under the chairmanship of the Chief Justice, this argument has for Ramesh the additional attraction of an implied criticism of the Chief Justice, suggesting as it does another instance of slackness on the part of the Judiciary.
The other ground is that the 1988 Citizenship Act, which allowed dual citizenship, granted all citizens the right to stand for Parliament, and that Section 48 (1) (a) of the Constitution, forbidding dual citizens to stand for office, is therefore an infringement of their rights.
Obviously Ramesh can now respond to the constitutional motions by conceding them. The parties (Ramesh and Ramsahoye) can then request a consent order nullifying the representation petitions, and confirming the election of Gypsy and Chaitan.
Ramesh will be able to act in this way because the ethical implications of such legal banditry will be above the heads of most of the population, for whom legal and constitutional niceties are a closed book.
Ramesh, as Attorney General, is the guardian of the Constitution. He has sworn to exercise this function without bias. In particular, the interests of the political party to which he belongs must play no part in his response to matters in which the State and the Constitution are involved.
In a matter such as a representation petition, to maintain impartiality should be easy, for the State is not involved at all. In a constitutional motion, it is. But there are two aspects to any constitutional motion: the plaintiff’s plea for redress of a perceived wrong, and the jurisprudential aspect—the implications of the case for future interpretations of the constitutional provision concerned.
In the motions of Gypsy and Chaitan, one jurisprudential aspect is almost trivial, because whether or not there are regulations in existence at a particular moment for the conduct of a representation matter is a very weak ground on which to claim immunity from the effect of breaking the electoral law. The President of the Republic made this point in his recent telecast when he said that laws and regulations cannot be expected to cover everything. The Constitution is a broad document that provides a framework for the protection of rights, and good faith is a requirement for its successful application. The citizenship issue is a little more interesting, but still ridiculous, because the plaintiff’s claim, in effect, is that the Constitution is unconstitutional.
Politically, however, the case is highly charged. It involves Ramesh Lawrence Maharaj directly, not as Attorney General but as a politician, because it will determine whether or not his party stays in office. There is therefore a gross conflict of interest.
As Attorney General he should distance himself from the case as far as possible, confining his participation as the State’s representative to the theoretical aspects. What he should certainly not do is concede the motions and seek a consent order. This would be a blatant and cynical abuse of his official position for the purpose of keeping himself and his party in office.
Nevertheless, it is clear that this is still an option. First of all, if he didn’t actually advise Gypsy and Chaitan to bring constitutional motions, his handling of the Peterson affair would have shown them the way. In any case, Fenton Ramsahoye, Gypsy and Chaitan’s lawyer, was the attorney who conceded the Peterson motion on behalf of the Attorney General.
Secondly, Ramesh has attempted to push himself, under the guise of the State’s representative, into the phase of the matter it would have been easiest to keep out of, namely the ex parte hearing and the representation petition.
Ramesh is not only using his official position to further the interests of the UNC. He is also using public funds to do so. He brought in an English QC, James Guthrie, to represent the State in the representation petition. Now that the court has blocked that attempt, Guthrie’s role will be to defend (i.e. possibly concede) the constitutional motions.
What this means is that Ramesh is using taxpayers’ money in the interest of one party to a suit (Gypsy and Chaitan) against the rights of the other (Franklin and Farad Khan) to protection by the Constitution.
Finally, it should be noted that while the law governing representation petitions provides specifically for rapid resolution of cases, constitutional motions are subject to no such restrictions. The effect of the constitutional motions, therefore, is to slow up the entire process.
If anybody is wondering why Mr Panday did not call a snap election, as he was expected to do, that is the answer.
Copyright © Denis Solomon
