Dear Editor,
THE words in article 161(2) “not unacceptable to the President” are yet again being trivialised – with brutish stupidity. With an accustomed degree of theoretical rhetoric with total disregard for relevance, Anil Nandlall (also SN’s editorial of Sunday June 4) trivialises those plain, lucid, unambiguous words to mean that the leader of the opposition, (LOO), if he compiles a list of six nominees, but with less than six nominees being “not unacceptable to the President,” nevertheless, the LOO has still submitted a list of six names who are “not unacceptable to the President.” So, they argue that the President is duty bound, in law, to appoint one whom he considers “not unacceptable.”

As I will show, it is both good law, and commonsense, that the President should reject (as advised by his attorney general) an INCOMPLETE and IMPERFECT list. Even Equity (that institution of fairness and conscience whereby strict legal rights are overridden) does not consider as perfect, that which is imperfect.

The interpretation of article 161(2) involves established test. It is this: “…to the interpretation of words in an instrument which are plain and unambiguous…the court is duty bound to construe such words in their ordinary sense, irrespective of consequences and may not modify or bend their meaning to achieve or to avoid a particular result” (extract from Massiah, C judgment in AG v. Mohamed Alli et al (1987) 41 WIR 176. Lawyers call this the strict or literal constructionist approach. The consequence of Mr. Jagdeo having to submit an entire new list, then cannot make President Granger’s rejection wrong. Mr. Nandlall (and the SN Sunday editor) are not permitted to (but attempt to) modify or bend their meaning. (KN June 6 “President Granger’s interpretation of the constitution is a warped one.”)

Nandlall’s sterile argumentation about Mr. Hoyte and Mr. Jagdeo’s “methodology” of having consulted some 33 civil society organisations involves no principle of interpretation. I waste no time with them. But perhaps transparency requires that he name those 33 organisations. Do they comply with article 161 as to representation in the National Assembly?
For his strict construction of article 161(2), it cannot be right, and certainly not fair, to the
President, to be subjected to what can only be termed as illegitimate pressure actuated by pure self-interest at worst, or misinterpretation at best, to waive his right to have the complete and perfect option of six “not unacceptable” nominees. (the illegitimacy of the threats of “other consequences” (Jagdeo), “dire consequences (Nandlall), “pickle” (Rohee) inter alia). One final point about the constitutionality of the President’s rejection (based presumably on the attorney general’s advice of his right/power/duty to do so) I argue the novel proposition that given the constitutional credentials and status of the attorney general of the day (now Basil Williams, S.C) (adumbrated in previous letters about Justice Holder’s and the attorney general’s controversy) there is, a rebuttable presumption of regularity or correctness of the advice of the attorney general of the day.

Only a court ruling can rebut that presumption. There is none; nor, is there likelihood of any. The constitution does not countenance every letter-writer, editor, coloumnist, Tom, Dick, Harry or Mary, extra-judicially, as its interpreter– only an AG. (the comparable role of a DPP in a criminal-law context has no relevance to this GECOM Chairman matter).
Finally, some additional (i.e not in any of my previous letters) comment about “fit and proper.” Those few in Guyana who would have been admitted as a solicitor in England (I believe that former Chancellor Desiree Bernard is in that elite) would know that the words “fit” and proper” (in this hybrid, binary formulation) imports unexpressed or unstated criteria, or, determinants, for deciding as to such fitness and capacity.

Surely, that determination is not, and cannot be, an exercise in abstraction. The certificate of admission which the Master of the Rolls (in England) signs, reads relevantly thus: “whereas upon Examination and Enquire touching your fitness and capacity to act as a solicitor……….. I am satisfied that you are a FIT and PROPER person so to act I do…….. ADMIT you to be a solicitor……” What one may relevantly ask is: what are the limits of such examination and enquiry? Would anyone dumbly argue that since no “criteria” are specifically or particularly tabulated, in the enabling stature (compare our Legal Practitioners Act. Cap 4:01 as to the general requirement of “good character” for admission as an attorney – at – law) there are none which the Master of the Rolls can consider in making a judgment as to his satisfaction that the person seeking admission is fit and proper for solicitorship.

Or, that the Master of the Rolls would be abusing power if he indicated that X,Y or Z attributes were specific/particular characteristics for admission. I argue that by analogy, the President is in a similar position as the Master of the Rolls as regards “fit and proper” for appointment of chairman. In the scheme of things, particulars (judge-like attributes of impartiality, integrity, intelligence, non-activism, medical firmity etc) exist by implication.
The indomitable Freddie Kissoon does not think that President Granger has any such power/right/duty to arrogate to himself such delimitation as to the meaning of “fit and proper” (KN, June 6 “The Dangerous Journey of David Granger”).

But Freddie does not, indeed could not, articulate as to by what other legal process a President could determine the specifics or particulars of the power in guided expectancy that the eventual appointee would be a “fit and proper” chairman, in the performance of this key constitutional job.
I tell the story of my experience as a magistrate when the first case under the Domestic Violence Act, 1996 was heard by me in 1997. The case was Bharrat & Bharrat V. Bharrat (CJ 6215-16/97). It was about two minor children seeking a Protection Order against their parents. I granted it. But counsel for the parents (respondents) had raised certain preliminary points in objection. The DVA had to be applied.

And in, and, for such application, a ruling on those points required an interpretation of certain provisions in the DVA. That was the only way of determining what my jurisdiction was, and was not. What was I supposed to do?; Retreat into a state of intellectual agoraphobia? Was I wrong to arrogate unto myself the right, and duty, to interpret the provisions; given the novelty of the issue? I was not. The Full Court (I was congratulatorily informed) upheld my decision, on appeal. I anticipate a similar vindication for President Granger if threats of legal challenge happen.

Regards
Maxwell.E.Edwards