Dear Editor,
Azruddin Mohamed is not my client. I hold no brief for the learned Attorney General Mohabir Anil Nandlall, S.C. I refer, of course, to the extradition matter pending in the Magistrate Court.
Mr. Mohamed’s relevant status is now that of a democratically elected member of the National Assembly (and by constitutional extension a member of Parliament) He, now, is the holder of the high constitutional Office of “Leader of the Opposition “(article 110). As I will show, this intervening constitutional fact is now the crux of the extradition matter. His holding of this high constitutional office raises questions of some constitutional nicety and novelty in our constitutional jurisprudence about his extraditability (parliamentary privilege, inconsistency with the Constitution) – questions of far-reaching constitutional importance and significance, public interest and curiosity. So, kindly permit me space in the letter column to raise and stir those questions.
First of all, (as devils’ advocate) I raise the question of what in lawyer’s vocabulary is known as parliamentary privilege. I put it this way – constitutionally does a Leader of the Opposition enjoy privilege or immunity from extradition? Is the holder of that constitutional office extraditable?
I begin my search for true answer(s) in the Constitution itself by taking Judicial Notice (again, this is lawyer’s vocabulary, I am not pretending to be some Judge) of the sheer indispensability of Parliament in the scheme and workings of the constitution in our constitutional democracy as a “…. democratic sovereign state”. (Article 1). I observe that like Article 1, Article 51 which establishes and creates the Parliament, is entrenched at the deepest level in our constitutional framework /architecture. This letter avoids adumbration about entrenchment in constitutional law, suffice that it is the Constitution’s way of attributing varying and different degrees of importance and sig nature, and protection from political idiosyncrasies – provisions like Articles 1,51 (11 in all out of the some 212) need a referendum for any “…. vote of the electors qualified to vote in an election ……” for changes/alteration to them (see generally Article 164 (2) (a) proviso).
Editor, for the benefit of your lay person readers I reproduce, verbatim Article 51 viz “51. There shall be a Parliament of Guyana which shall consist of the President and the National Assembly”.
So, again I take Judicial Notice Mr. Mohamed is an elected member of this National Assembly (one of its 65 human alter ego), and the indispensability of the performance of the functions, and execution of the duties that attaches to that membership in the representation in the National Assembly of voters who voted for his political party. All of this traces back to the entrenchment of Article 51.
I turn now to Article 110 which relevantly reads: “110 (1) There shall be an office of Leader of the Opposition …. (2) Qualifications for election to the office of Leader of the Opposition and other matters concern there with are regulated by article 184”.
The marginal note to Article 184 reads thus “Leader of the Opposition” paraphrased, Article 184 deals with, generally, vacancy, and removal from that office it incorporates by reference (see Art. 184 (2) (c) the crucial Article 156 in the parliamentary privilege /immunity aspect. So, does Articles 156 and 184, conjointly upon a true interpretation, confer a leader of opposition with privilege or immunity from extraditions?
Editor, Article 156 is extensive and, materially as it’s marginal note reads it provides for “Tenure of Office of members of the National Assembly”. In substance it provides, for and confers a constitutional security of tenure that is sui generis. Of course, the leader of the opposition is a “member” within Art. 156’.
It is one of the peculiarities of a constitution (like Guyana’s) drafted on the Westminster model that a –sub-heading or marginal note such as – “security of tenure “- or privilege is never used by the draftsman. It is vain to look for one in our Constitution. As with Judges (as the well-known local Barnwell case shows) D.P.P, COP, Auditor General, Clerk, and Deputy Clerk of National Assembly, security of tenure is latent, not explicit, and is to be found as a matter of interpretation, of the relevant provisions dealing with removal from office , and as in Barnwell that latency is, per force, given judicial imprimatur, with vigilance Such latency I submit , and contend is similarly the position with the holder of the office of Leader of the Opposition in article 156 and 184 and so sui generis. (of its own particular type).
Extraditability of the leader of the opposition has to be found as a matter of interpretation of Articles 51, 110, 164 and in particular 156 and 184 read as a whole, about removal from office, it is in substance, and in effect, a removal from office. So, if the provisions read, as they must as a whole do not countenance extraditions as one of the conditions of removability then it is inconsistent with the Constitution ultra vires and impermissible.
The corollary, necessary inference, or necessary implication of such inconsistency, impermissibility is that, latently, the Constitution provides the holder of the office of the Leader of the Opposition with a security of tenure and concomitant privilege, immunity form extradition during the holder’s incumbency. That is the crux of the matter.
Editor, conditions of limitation on removal (and by extension-vacancy) drafted (as in Art. 156) with such consummate lucidity, specificity and particularity cannot be considered as some idle, drafting pedantry. Explicitly, they identify the limitations on removal the drafters must be taken to have said what they mean and meant what they said by entrenching them with a 2/3 vote requirement for any alteration, impairment. In this regard the seminal observation of Lord Radcliff in the important Constitutional removal from office case of Adegbenrov Akintola (1963) (removal of premier by Governor) merits quotation viz: “The question to which an answer has to be found is of obvious importance… Its decision turns on the meaning to be attached to the wording of S.33 (10) of the constitution of Western Nigeria, read as it should be in the context of any other provisions of the constitution that may legitimately influence its meaning … By those words therefore, the power of removal is at once recognized and conditioned and, since the condition of constitutional action has been reduced to the formula of those word for the purpose of the written constitution it is their construction and nothing else that must determine the issue…the right of removal which is explicitly recognized in the Nigerian Constitution must be interpreted according to the wording of its own limitations, and not to limitations which that wording does not import”. (emphasis mine). That principle is expressed in Latin familiar to lawyers – expressio unius est exclusio alterius (the expression of a thing is the exclusion of other (s) not mentioned/ this cannot be emphasized enough, in this privilege /immunity question).
Editor, with no pretense at arrogating the role of interpreter (that is for Judges) it appears to me from their reading that there is not a shadow of doubt from an examination of articles 156 and 184, that extradition is not countenanced, or, intended as one of the conditions of removal of a Leader of the Opposition from Office. It is not a limitation which their wording imports. Extradition, in the present state of law would , have a subversive effect; arguably tend to a constitutional crisis of vacancy in that office and a hiatus , Constitutional imperative and indispensability of there being an incumbent holder would be thwarted, and frustrated ; As to limitations- (inter alia the explicit conditions of removal are no- confidence vote, criminal conviction/imprisonment, political detection, party recall, voluntary absences from sittings) The obvious concomitant of incumbency and holder of the office of LOO, is a right to be in Guyana.
Secondly, extradition is not some constitutional conception. It is entirely statutory/treaty/International law, whatever form it takes, it is “other law” in terms of the supreme law provision (Article 8). Copious case law shows that if “other law” operates to subvert, dilute, impair, water down constitutional rights, such other law is inconsistent with the Constitution and ipso facto, and ipso jure “void”. In passing I say that Art. 39 (2) has no relevance; the questions raised do not involve fundamental rights.
Extraditions, _ subverting impairing, diluting the representative rights in the National Assembly of Opposition electors, is a clear inconsistency.
I end with this; I apprehend that by its very nature both Government, and Opposition members have an interest in this privilege / immunity question. I anticipate (cautiously, given the obvious politics sensitivity of the matter not with misplaced confidence or optimism) that application will be made to the Court for authoritative ruling. The principle of upholding the Constitution is higher and greater than the case. And further I say not.