INCONSISTENT AND ABSURD

February 22, 2016 | By KNews | Filed Under Features / Columnists, Peeping Tom, http://www.kaieteurnewsonline....nsistent-and-absurd/

The newspapers of today can hardly avoid legal issues. We live in a litigious society. The court makes decisions everyday which impact on the lives of citizens and which have implications for governance. These are matters of public concern and must be reported on in the media.
Other issues have legal implications and therefore the news dailies often find themselves discussing legal issues. The Letter to the Editor pages are filled with comments by trained and untrained legal minds offering their own opinions on legal matters.
It seems these days everyone is a legal expert. The uninitiated in the law somehow have a way of presenting their arguments with authoritative relish. If you read the blogs, you will find people putting their own legal interpretation to rulings given by the Courts and presenting their opinions as if it is based on solid legal reasoning.
The danger, of course, is that people can be led astray by uninformed opinions. This is one of the reasons why reputable newspapers tend to solicit the views of prominent legal counsels to offer their opinions on legal matters.
Guyana, however, is a special case because in many instances the opinions offered tend to mirror the divisions across political lines. There is little independent space in this country and when someone seeks to be objective they are often attacked as supporting one side or the other.
There is also a plaster for every sore. For every argument that is made there is a counter argument, often made by someone who really has no legal training. Even before the arguments were made known, for example, in the recent constitutional challenge to persons sitting as Technocratic Ministers, there were persons who were attacking the judge rather than discussing the merits of the decision.
Then there are instances in which layman’s interpretations of our laws are given in order to make a case that the law has been broken. But none of those making such arguments are filing either private criminal or legal charges to prove their points. Is it because they know that their arguments are more political than legal?
How is the average reader to assess these “legal arguments” that are being made? A good start would be to understand the three main rules of legal interpretation, or in other words, how would a judge interpret a statute.
There are three main rules of legal interpretation: the literal rule, the golden rule and the mischief rule. The literal rule means that the interpretation that is applied takes the normal or literal use of the meaning of the words of the law. The letter of the law is used in its interpretation, literally speaking. This can lead, however, to problems. It has in fact led to two sets of problems. The first is absurdity and the second is inconsistency.
As such, the second rule of legal interpretation is known as the Golden Rule and seeks to promote interpretations that avoid either absurdity or inconsistency. In the case of the Golden Rule, one may opt for either a narrow construction of the law or a broader construction is used. The third method of legal interpretation is the mischief rule and seeks to determine the true meaning and intent of the legislators.
Persons seeking to make layman’s interpretation of the law should at least be guided by these rules.
The Fiscal Management and Accountability Act prohibits a Minister or public official from making a gift of public property unless that Minister or official is expressly authorized to do by law. This provision has to do with the control and management of public property. It prohibits any public official, be that person a Minister, Permanent Secretary, driver – there are many of them these days – office assistant or secretary, from gifting public property.
This provision is concerned with preventing public officials from taking the Ministry’s movable or immovable property such as the furniture, the cars, the filing cabinets, the staple machines etc. and handing it out to others. It is aimed at preventing any official from giving away property that belongs to the State. It is not intended to prevent the sale, transfer or allocation of State lands or the privatization of State property by public officials. It has nothing to do with agreements entered into for development or investment purposes.
If that section is interpreted to mean that governments cannot assign lands to others, then it would mean that President Desmond Hoyte unlawfully gifted to the International Community one million acres of land for use in sustainable environmental research and practices. Now that would be both inconsistent and absurd, would it not?