Cummings could file a constitutional motion claiming redress for discrimination
May 5, 2002
Letters on stuff
In an interview with Stabroek News reported in SN of the 28th April, 2002, Mr Khemraj Ramjattan cited a passage from the 8th Edition of Professor Wade's work in support of his contention that the Guyana Forestry Com-mission (GFC) is independent of the Government and intervention in its decision making process is impermissible at law. Actually the statement cited in Wade is that of Lord Justice Denning as he then was in Tamlin v. Hannaford when rejecting a claim by the British Transport Commis-sion for privileges and immunities of the Crown.
"In the eye of the law", he said, "the Corporation is its own master and is answerable as fully as any other person or corporation..."
Mr Ramjattan then went on to state that "not even the President could justifiably interfere to override a decision of GFC through the instrumentality of the GFC Chairman." Mr. Ramjattan's statement is overboard and he may have overlooked the constitutional importance of the issue raised by Dr. Luncheon, who based his intervention on the ground that the GFC had discriminated against Mr. Cummings. He did not say what form the discrimination took but it is assumed that it was either on racial or political grounds, which the constitution prohibits. Our Constitution enshrines the fundamental rights to individuals, which operate as limitations on the exercise of arbitrary powers by the Govern-ment or its agencies.
Article 149 of the Constitution states:
"No person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority".
The constitution goes on to define the type of discrimination for which redress could be sought and states:
"discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour, creed..."
In Richmond v. Guyana National Newspapers Limited (1978/2479) Bishop J., as he then was, found that the Guyana National Newspapers Limited (GNNL) (the shares of which were and still are wholly owned by the Government) was controlled by the Government and was a Government instrumentality; he reasoned, "that...the nexus between this Corporate body (GNNL) and the executive Government is not subtle but manifest the mastership, in terms of direction, control and supervision has not been left to the niceties of statutory interpretation..."The learned judge then granted a declaration to Mr. Richmond on the ground that the refusal by GNNL to accept for publication a paid notice in the Chronicle newspaper was unconstitutional and a violation of Articles 12 and 15 of the 1970 Constitution. Article 15 prohibited discrimination on grounds of race or political opinion as Article 149 of our 1980 Constitution now does.
Therefore, if Mr. Cum-mings were to file a constitutional motion claiming redress from the State under article 149 and the judge finds that the GFC had discriminated against him and determines that the GFC is an instrumentality of the State then Cummings would be entitled to redress for contravention of his fundamental rights.
Under the State Liability and Proceedings Act the Attorney General would be the Respondent. In those circumstances if the Govern-ment is satisfied that there was discrimination by the GFC it may lawfully instruct the Attorney General to consent to redress being granted to Mr. Cummings, notwithstanding the decision of the Chairman of GFC or its Board.
I believe that Dr. Luncheon's autocratic intervention underscores an enduring disregard for the Rule of Law, and the intervention without circumlocution or ambivalence was no doubt premised on the German doctrine of "realpolitik" to give speedy relief to Mr. Cummings.
Rex H. Mc Kay S.C.