…provides interpretation of Article 161 (2) of the Constitution

ATTORNEY General, Basil Williams provided a written response to the opposition, challenging their interpretation of Article 161 (2) of the Constitution dealing with the appointment of a chairman of the Guyana Elections Commission.There has been a stalemate in the appointment ever since President David Granger, early January rejected a six-member list submitted by Opposition Leader Bharrat Jagdeo. President Granger had deemed the list not suitable and following a period of back and forth with the opposition, he instructed the AG to meet with the opposition’s representatives; Anil Nandlall and Priya Manickchand. At their first meeting Nandlall had put forward the opposition’s interpretation of Article 161 (2), which the AG said he had to study and provide a response.

Below is the full text of the AG’s response
On the 27th February, 2017 the Hon. Attorney General and Minister of Legal Affairs, Basil Williams, SC, MP met with Mr. Anil Nandlall and Ms. Priya Manickchand at his Chambers, pursuant to the request of His Excellency President David Granger. This meeting centred on article 161 (2) of the Constitution with respect to the appointment of the Chairman of the Elections Commission. At this meeting the Hon. Attorney General and Minister of Legal Affairs presented a copy of his response to their contention. The following is the Attorney General and Minister of Legal Affairs’ response-

The Applicability of the Ejusdem Generis Rule to Article 161 (2) of the Constitution of Guyana
Mr. Nandlall has advanced the argument that the ejusdem generis rule of construction does not apply in Guyana. This position is erroneous. However, before refuting Mr. Nandlall’s misguided argument it is instructive to set out what is the ejusdem generis rule:

The ejusdem generis rule says that general words which follow two or more particular words in an Act must be confined to a meaning of the same class as the particular words. The intention is to cover a wide range of similar circumstances by first creating a genus, category or class that is two or more examples, followed by a general expression which has the effect of extending the operation of the statute to all particular circumstances which are within the genus created. In this way, the statute does not need to list all relevant examples. As explained by Justice Subba Rao in Supreme Court of India case K.K. Kochuni v. State of Madras and Kerala [AIR 1960 SC 1080, 1103], in the following words –

“…The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary.”
The rule is a facet of the principle of the latin maxim, noscitur a sociis, which contemplates that a statutory term is recognised by its associated words. Therefore, when general words are juxtaposed with specific words, general words cannot be read in isolation. Their colour and their contents are to be derived from their context.
Mr. Nandlall in support of his contention that the above rule does not apply to Guyana, relied on section 5 of the Interpretation and General Clauses Act, Cap 2:01which provides that “or”, “other” and “otherwise” shall be construed disjunctively and not as implying similarity, unless the expression “similar,” or some equivalent expression, is added.”
He further cited the case Badri Prasad v Demerara Mutual Life Assurance Society Ltd (1981) 31 WIR 196 relying on the judgment of Chief Justice George. To quote Mr. Nandlall-

“Chief Justice George in the course of his judgment stated “It is clear…that the trial judge was of the view that the ejusdem generis rule formed part of the law of Guyana. It should be noted however, it does not appear that his attention was directed to section 5 (1) of the Interpretation Ordinance which was then in force. The Interpretation Ordinance to which Chief Justice George referred was the equivalent of the current Interpretation and General Clauses Act. Again, speaking of Section 5 of the Interpretation and General Clauses Act, the learned Chief Justice at page 217 made the following seminal conclusion: “More specifically, as regards the meaning of the words “or”, “other” or “otherwise” prima facie they exclude the application of the ejusdem generis rule and, when used, they are not to be construed as being of the same genus as specific words which precede them, unless the expression “similar” or some equivalent expression is used, or unless the context so determines or requires.”

However, Mr. Nandlall failed to give consideration to the majority reasoning of Chancellor Crane in that very case. In that case Chancellor Crane stated at page 206-
“It has been said that the rule does not apply in Guyana because of what is said about the disjunctive construction to be given to the expression ‘“or’, ‘other’ and ‘otherwise’’’ in section 5 (1) of the Interpretation and General Clauses Act; and some judges, surprisingly, have taken this view. I however think this is wrong. But was it not, this view Lord Diplock counselled against, as a “misunderstanding”…that is regrettably common”? There is no compulsion about it; if the general words, after having been construed in their widest context, are shown to be similar in every respect and related by common characteristics to those in the preceding genus, the rule must apply so as to restrict those words to those bearing common characteristics in the preceding genus.”

Additionally, in the Guyanese case Naraine et al v National Bank of Industry and Commerce Ltd, Civ Appeal No. 75 of 2001, Chancellor Bernard ruled that the ejusdem generis rule does apply in Guyana. Chancellor Bernard stated at page 4-“It cannot be disputed that the applications for orders listed from (a) to (e) of Rule 16 (1) are interlocutory as it provides for a single Judge of the Court to “hear, determine and make orders on any interlocutory application.” The “ejusdem generis” rule applies.”

Further, in another Guyanese case, Commissioner General v Caribbean Chemicals (2009) 75 WIR 272, Justice of Appeal Charles Ramson, SC examined the meaning of the word ‘other’ in relation the ejusdem generis rule. At page 279 Justice Ramson stated-

“it would appear to me that the word ‘other’ is indicative of a recognition that the itemised applications were specific in that a single judge was empowered to make orders in relation to each of them, either singly or cumulatively, and he was also entitled to ‘hear, determine and make Orders’ in any ‘other’ application of an interlocutory kind.”

The learned Judge then went on to explain the meaning of the word ‘other’ from both a ‘lexicographically’ and ‘jurisprudentially’ prospective. He stated-

“Lexicographically, the primary meaning of ‘other’ is ‘not the same as one or more or some already mentioned or implied, separate in identity, distinct in kind, alternative or further or additional. Jurisprudentially, the word ‘other’ has been subjected to scrutiny over the years….According to Erle CJ in Ayrton v Abbott (1849) 14 QB 1 at 17, ‘other’ always implies something additional’. And North J in Re Miller, Daniel v Daniel (1889) 61 LT 365 at 367 was emphatic that ‘you do not use the word “other” unless there is some relation between the classes of things’. The word ‘other’ follows particularised items, and as Lord Tenderden CJ declared in Sandiman v Breach (1827) 7 B & C 96 at 99, ‘Where general words follow particular ones, the rule is to construe them as applicable to [items] ejusdem generis’.”

Further, as Justice Ramson explains-

“Sometimes called Lord Tenderden’s Rule, this rule, ‘where the word “other” is used in any Statute, or other document, [which] enumerates several classes of persons or things and immediately following and classed with such enumeration, the clause embraces “other” persons or things-word “other” will generally be read as “other such like” so that the persons or things therein comprised may be read as ejusdem generis with and not of a quality superior to or different from those specifically enumerated.”
Therefore, based on the reasoning above it is clear that the ejusdem generis rule does apply in Guyana and thus can be used as an aid to construing article 161 (2).

An acceptable List
The persons eligible to be Chairman of the Elections Commission according to article 161 (2) shall be a judge or a person who has held office as judge or a person who has the qualifications to be a judge, or any other fit and proper person. When looking at the construction of the section one can reason that the categories are in the order of preference. This order, coupled with the use of the word shall (mandatory in this sense) conveys to us that the ideal person in the contemplation of the framers of the constitution is someone who falls into the first category namely, a judge or a person who has held office as a judge or a person who qualifies to be a judge. Supporting this proposition is the proviso to article 161 (2) which states-

“Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court, having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge.”

Consequently, the Leader of the Opposition’s list of candidates must include the persons required by the Constitution in the priority category, supported by the proviso. A list from the Leader of the Opposition, with candidates that only fit into the secondary category: namely ‘any other fit and proper person’ would be an unacceptable list.

Finally, it must be clearly pointed out that the President is empowered by the Article 161 (2) to deem a list acceptable or unacceptable. Further, it is the President who ultimately decides whether a candidate is fit and proper for the office of Chairman of the Elections Commission.

Pic of AG
Caption: Basil Williams