Dear Editor,
THIS letter is prompted by the following newspaper reports: “PPP willing to approach CCJ to interpret constitutional provision” (KN January 13, 2017); “Jagdeo wants CCJ to interpret law on GECOM Chair” (GC Friday January 13, 2017); and “AG queries haste to complete Presidential third term appeal” – KN Saturday, January 14, 2017; and “February is set for ruling on third-term appeals” SN, Sunday January 15, 2017.Since article 161(2) provides relevantly that the chairman (not being a person who is an alien) “…. Shall be a person who holds or who has held office as a judge… or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation…” a question about the interpretation of this article firstly involves the jurisdiction of the High Court for its ruling (see article 133(1)(a)). Whatever the outcome, I would anticipate that the unsuccessful party would then appeal to the Court of Appeal and then invoke the appellate jurisdiction of the CCJ. This is no summarily expeditious process. Only God knows how long from High Court to Court of Appeal to ruling by CCJ would take. And I do not think — although I express no conclusive opinion — that a mechanical facility or process of what is called “leap-frogging” to the CCJ is available in a matter of this sort (this not being a matter of its original jurisdiction in interpretation of the Treaty of Chaguramas). Be that as it may, I submit that an action for a declaration that the President has acted unconstitutionally, involving as it would, an interpretation of article 161(2) has no real prospect of success.
First, the President is the only constitutional functionary who is peculiarly entitled to “act in his own deliberate judgment” (article 111 (1), 161(3)(a)). When the President acting pursuant to article 111(1) invokes this unfettered discretionary power in deciding whether the list of nominees are “not unacceptable” to him, no Court can declare that he has improperly, arbitrarily, unreasonably, or otherwise exercised that discretionary power or function. Both on principle, and authority alike (Adegbenro V, Akintola And Another (1963), 3All ER, 544 PC that issue of non-acceptability, because of the plentitude of such discretionary power, is what in jurisprudence, is known as a non-justiciable issue (i.e., no court ought to, or will take cognizance or try it and give a decision/ruling on it, save to say that it is not a justiciable power, the exercise of which it can review).
Second, the ejusdem generis principle –- general words take their genu or character or nuance from the character of the Specific words used, applies; and by it, the President is entitled to demand that nominees be persons of judge-like attributes of impartiality, etc. (see generally on this ejusdem generis approach the leading local case – law authority of Badri Prasad V. Demerara Mutual Life Assurance (1981) 31 WIR 196 CA). This second proposition merits further elaboration, as it has been a source of considerable dispute and criticism of what the President has intimated is his benchmark for appointment. Given such plentitude of discretionary power (as I would articulate below), the President by his intimation of a preference for a judge, or judge-like person (whichever he is understood to have meant) was within the boundaries of his constitutional power; and that is all that matters. Since neither President Granger nor Mr Jagdeo are endowed with psychic powers to go into the state of mind of any nominee as to his/her capacity for impartiality, both can only, sensibly, in their respective functions of nomination and appointment, act on the empirical or demonstrated evidence of impartiality, or alternatively, take the approach of a preconception that a judge (sitting or former) by reason of such profession, would bring impartiality to the office of GECOM, Chairman, as he/she does, or did, in the court. What I understand the constitution-makers and draftsman to have said in article 161(2) is, inter alia, that a judge is a classic, or per force, a “fit and proper person” and any other person not being a judge/magistrate/lawyer must be a person with the signal hallmark or attribute of a judge – a disposition of impartiality and neutrality.
It must be a matter of sheer commonsense and constitutional logic, that if the draftsman of article 161(2) did not intend the preceding special or specific wording as to “judge” to have any limitative or restrictive effect or impact on the generality of the words “any other”, nothing would have been easier or simpler than for them to have drafted article 161(2) without those special reference – words viz “judge or person qualified to be a judge.” They simply could have drafted – “shall be a person to be appointed by the President …”. But they did not. So, there must have been some significant constitutional purpose in such specificity of wording. What,then,is that purpose? I submit the President rightly comprehended and apprehended that purpose, when he intimated his preference for a Judge or Judge-like person.
Besides, the Constitution-makers having created their Frankenstein (i.e., a monster) by the words “not unacceptable to the President….”, one cannot expect the court (not even the CCJ) to prevent that presidential right of non-acceptability, from devouring article 161(2) and effectively (perhaps efficiently) reducing and relegating it to a status of non-justiciability on the issue of the President’s judgment that nominees are unacceptable, if they do not satisfy his benchmark of being a Judge or demonstrated Judge-like qualities. This matter I submit is of Adegbenro, supra elucidated with clarity in the analogous constitutional case, where the crucial and operative words were “… it appears to him” – words of subjectivity (not objectivity). The court there said,“By these words therefore the power of removal is at once recognised and conditioned: and since the condition of constitutional action has been reduced to the formula of these words for the purpose of the written constitution, it is their construction and nothing else that must determine this issue” (the issue there being the removal of the Premier by the Governor-General). Substitute the word “removal” by, appointment, and juxtapose that formula in the Adegbenro case with the article 161(2) formula which contains the express words “not unacceptable to the President”, and the implied words: “in his own deliberate judgment”, and the analogous case of Adegbenro is a high persuasive authority supporting the constitutionality of the President’s rejection. The point cannot be stressed enough that a demonstrated judge-like attribute of impartiality is one of (if not, perhaps the dominant) consideration that could, by constitutional permission, influence and inform President Granger’s judgment (within the words “his own deliberate judgment”). And if this was the thinking of the President at the State House media event (however periphrastically expressed), that view is constitutionally sound, and attracts no constitutional opprobrium. I argue that the words “not unacceptable to the President,” monstrous in their affect, are clearly intended to ensure with laser–like, pointed efficiency (without any reliance on the generality of “his own deliberate judgement” subjective power in article 111(1)), that the Leader of the Opposition does not opportunistically foist any unfit Tom, Dick, Harry or Mary on the President, and make him/her the President’s constitutional duty to appoint, as GECOM Chairman. The view, misconceived and constitutionally inadmissible as it is, that the President was/is obligated to appoint one of the six nominees originally submitted by Mr Jagdeo, is roundly disapproved of and repelled by the reasoning in Adegbenro, which went like this: “The difficulty of limiting the statutory power of the Governor-General” (President) “in this way” (limiting him to appoint one from the original list submitted by Mr Jagdeo) “is that the limitation is not to be found in the words in which the makers of the Constitution have decided to record the description of his powers. By the words they have employed in their formula ‘it appears to him’” (not unacceptable to the President) “the judgment as to the support enjoyed by the Premier” (judgment as to fit and proper person) “is left to the Governor-General’s” (President’s) “own assessment and there is no limitation as to the materials on which he is to base his judgment or the contacts to which he may resort for the purpose.” (emphasis mine)
Such, I submit, is also the over-riding and over-arching nature of President Granger’s power of rejection, and appointment; and this is so, even without factoring in the coexisting and co-extensive power to act “in his own deliberate judgment” in relation to those nominees. No court can impugn, or, usurp his assessment and judgment. Nor, is it as if such a benchmark or starting point imposes some legal impossibility; or practical improbability bordering on what lawyers know as frustration. Far from it. There is a reservoir or bank of judges. Besides, it is fashionable these days to demand as a worldwide standard, “best-practices”; “most favoured treatment”, and even Equity (that court of good conscience) has a most-favoured person (the bona fide purchaser of a legal estate for value). So, I contend that constitutionally, it is not impermissible for the President, importing such “materials” (Adegbenro) into his appointment thought process.
I caution Mr Jagdeo from my position of that of an officious bystander and so, Devil’s advocate in this matter, he would engender a constitutional show-down, if he omits to submit a fresh list for consideration. That is a show-down that he cannot win – both law, and political good sense would be against him. His legal advisers can (like the Emperor’s adviser in Hans C. Andersen’s “The Emperor’s new clothes”) fool him and misguide him all they want about the prospect of success in the court. The CCJ judges would, predictably, not hesitate to (as the child did not in “The Emperor’s New clothes”) say that “he isn’t wearing anything at all”; his case would be as unmaintainable and devoid of merit if he seeks and expects some declaration that the President has no power to reject his list, as the Emperor, was truly naked.
I note with both commendation and condemnation a letter by learned Counsel Mohabir A Nandlall (“The Power of the President under Article 161” K.N Saturday, January 14, 2017) I commend Counsel for his industry of research as to the words “fit and proper”; but I condemn him for misutilizing and misapplying those case laws to our article 161(2) powers of the President, in arriving at his conclusion in criticism of the learned AG, that under article 161(2) the President has no power to make a unilateral appointment in the event as has happened, that Mr Jagdeo did submit a list; and that it is not the President’s function to decide who is a “fit and proper person.” I entertain not the slightest doubt that the learned Attorney General (Basil Williams) is right that the President has a constitutional power to unilaterally appoint if Mr Jagdeo omits or refuses to submit a fresh list as requested; and also the shared but ultimate function to decide who is a fit and proper person is conferred on the President. Briefly, this power and function respectively exist not expressly, but ex necessitate legis (ie by necessary implication of law, or by legal necessity). They both derive from the crucial words, “not unacceptable to the President” the purport and impact of which I have endeavoured to articulate above.
The lifeblood of the law is commonsense. The commonsense of the matter is this: someone not acceptable, is rejectable; any one entitled to reject someone if that someone is not acceptable to him, is expected by law and politics alike, to do just that – reject him/her. So the constitution -makers could never have intended to contemporaneously confer an enabling power to refuse to accept, and a disability to reject – asinine as that may seem. Moreover, whatever the Carter Formula might have engendered as regards a politician’s expectation, the question is not what the Carter Formula envisaged, but what the existing law, sensibly interpreted, means. I argue that the right, and power of the President to reject the nominees in the list submitted, necessarily implies a correlative duty to submit a new list; inevitably a constitutional hiatus, or, an interregnum would result, as no Chairman (in the event of an existing vacancy) was appointable if such correlative duty does not exist, or, a unilateral power to appoint, in the event of refusal to submit a fresh list. And, yet that would be the result, if Mr Nandlall’s argument be right. So, it cannot be. An argument which embraces a constitutional interregnum cannot be right. This is constitutional reality; not abstract theory. Article 161 (1) must be interpreted with commonsense and logic to promote, not impede or frustrate its workability.
Regards
Maxwell Edwards
Attorney-at-Law