Stamp J in Bourne (Inspector of Taxes) v. Norwich Crematorium Ltd propounded that
‘Sentences are not mere collections of words to be taken out of the sentence, defined separately by reference to the dictionary or decided cases, and then put back again into the sentence with the meaning which one has assigned to them as separate words, so as to give the sentence or phrase a meaning which as a sentence or phrase it cannot bear without distortion of the English language. That one must construe a word or phrase in a section of an Act of Parliament with all the assistance one can from decided cases and, if you will, from the dictionary, is not in doubt; but having obtained all that assistance, one must not at the end of the day distort that which has to be construed and give it a meaning which in its context one would not think it can possibly bear.” [Emphasis mine].
Therefore, while one may resort to various aids of interpretation to construe a provision, such construction must always be against the backdrop of the context being used. Professor Willis gives an apt example of the application of this rule when he states that a thrower of vitriol cannot be indicted under a section that makes it an offence to “shoot, cut, stab, or wound”, for the simple reason that the wounding contemplated by the section is a wound which involves the making of a hole or slice. Vitriol, being a sulphuric acid, would not cause such a wound and therefore does not fall within the context of wounding contemplated by that specific section.

In Pengelly v Bell Punch Co Ltd , the word ‘floors’ in the phrase ‘floors, steps, stairs, passages and gangways’ which were required to be kept free from construction, was held not to apply to part of a factory floor used for storage rather than passage. Hence Fit and proper person can only be a person with qualities and characteristics of a judge, former judge or person who can be a judge. These characteristics include the ability to be impartial, knowledgeable of the law and the ability to make sound judgments.
The Bar Association fell into error when it predicated its contentions on a ‘pull out’ of words from an entire article and purported to interpret them without reference to or in isolation from the other words in that article, in breach of the established canons of construction. It is respectfully submitted that to interpret only the words, “Or any other fit and proper person” in Article 161 (2), breaches the established said canons of construction. Hence in answer to Question A the list must include a judge, former judge or a person qualified to be a judge or any other fit and proper person (judge like qualities).
Application of section 5(1) of the Interpretation and General Clauses Act, Cap. 2:01
Article 232(9) of the Constitution and sections 3(2) and 4(1) of the Interpretation and General Clauses Act are relevant to the application of section 5(1) to the Constitution. Article 239(9) states – “(9) The Interpretation and General Clauses Act…shall apply…for the purpose of interpreting this Constitution…”
Section 3(2) states –“(2) …this Act [the Interpretation and General Clauses Act] shall, unless it is otherwise expressly provided, apply to this Act and to all written law…”
Section 4(1) states – “4. (1) Where expressions are defined in or for the purposes of or used in any written law or public document, such expressions shall have the meanings assigned to them, unless there is anything in the subject or context repugnant to or inconsistent with such meaning.”.
Section 5 (1) states – “5. (1) In any written law and in any public document – “or”, “other”, and “otherwise” shall be construed disjunctively and not as implying similarity, unless the expression “similar”, or some equivalent expression, is added;”.
Section 5(1) of the Interpretation and General Clauses Act contains definitions of expressions that may be used to interpret those expressions used in any written law and in any public document. Those definitions shall be used unless there is something in the subject or context of the written law that is repugnant or inconsistent with the definition. Applying section 5(1) to article 161(2), the words “or any other” in the category “ or any other fit and proper person” renders the category disjunctive from the two previous categories since the word “similar” or any equivalent expression is not used with those words. The category of “any fit and proper person” must then be given a very wide construction. This means that any person “who is fit and proper” is eligible for the post of Chairman.

The first two categories, judges and persons qualified to be judges, can be classified as persons of the legal profession. The intention of the amendment is to widen the classes of persons specified to include persons of the legal profession. Hence, it would be contrary to the intention of the constitution to construe the expression “any other fit and proper person” too widely, as this would open the door for persons other than the persons of the legal profession. In this regard, an application of section 5(1) of the Interpretation and General Clauses Act in that manner to determine the members of the third category will be repugnant to or inconsistent with the context of article 161(2) and (4).
This is not a favourable construction of the article.
Question B
President’s Unfettered Discretion
Subsection 1 of Article 182 of the Constitution of Guyana grants the President immunity from being personally answerable to any court for the performance of the functions of his or her office or any act done in the performance of those functions. In other words, the President’s actions done in the execution of his office cannot be questioned in any court of law and are therefore his acts are immune from curial process. Jowitts dictionary of English law 7th edn, Volume 1 p.1030 defines discretion as; ‘Discretion is a science of understanding, to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences and not to do according to their wills and private effections for as one said, talis discretion discretionem confundit’
It should be noted that our President is an Executive President. The people of Guyana have granted to him wide powers and wide discretion and trust him to exercise it wisely. It is the people through the constitution who have so decided.

Additionally, Article 111(1) of the Constitution of Guyana provides that: “ In the exercise of his or her functions under this Constitution or any other law, the President shall act in accordance with his or her own deliberate judgment except in cases where, by this Constitution or by any other law, he or she is required to act in accordance with the advice or on recommendation of any person or authority.”
These are the clear words of the constitution. To interpret them to mean anything less than what is clearly stated here is to read words into the constitution and to misconstrue it. The office of the President cannot be equated to that of any other public authority and thus be made subject to judicial review. According to Fiadjoe in his text Commonwealth Caribbean Public Law: “The chances of the Head of State’s discretion coming up for judicial review would be few and far between, whereas the possibilities of the review of the discretion of the Service Commissions and other organs would be legion. It would also be philosophically easier to justify the argument that the founding fathers of the Constitution must have intended to shield the office of Head of State as a representative of the Crown, more so than they would have wished for the Service Commissions.” p. 71
If the people wish they can amend the powers and discretion of our executive President but it would have to be done through Parliament not the court. In Guyana, Article 8 declares the Constitution to be the supreme law of the land. The office of the President is established by and under the Constitution. By Article 89, the President shall be the Head of State, the supreme executive authority and the Commander in Chief of the Armed Forces of the Republic of Guyana.
Article 111(1) stipulates, “In the exercise of his or her functions under this constitution or any other law, the President shall act in accordance with his or her own deliberate judgment except in cases where, by this Constitution or by any other law, he or she is required to act in accordance with the advice or on the recommendation of any person or authority.”

The case of Democratic Alliance v President of the Republic of South Africa and Another (5950/2017) [2017] ZAWCHC 34 concerned the President’s decision to appoint Mr Menz Simelane as the National Director of Public Prosecutions (National Director) of the Republic of South Africa. This power was conferred by s 91(2) of the Constitution of the Republic of South Africa Act 108 of 1996 (the Constitution) which the court stated had to be read together with s 83 of the Constitution. Section 83 reads:
“The President-
a. is the Head of State and head of the national executive;

b. must uphold, defend and respect the Constitution as the supreme law of the Republic; and

c. promotes the unity of the nation and that which will advance the Republic.”

In this case it was decided that the executive power conferred upon the office of the President by s 91(1) of the Constitution is circumscribed by the bounds of rationality and by sections 83(b) and (c) of the Constitution and was reviewable.
The court should note that there is no equivalent provision in the Constitution of South Africa to Article 111(1). Therefore, there can be no absolute reliance on South African authorities to support the position that the President’s exercise of his discretion is subject to review. Hence the case of the President of the Republic of South Africa where the Court came to the conclusion that the discretion of the President is subject to review cannot be accepted as the final position here. This would amount to dis-regarding Article 111.
The court should also note the case of AG v Dumas, 2017 UKPC 12 cannot be applied or equated to our local situation here either since The President of Trinidad and Tobago is not an executive President clothed with the powers and discretion granted to our President by our constitution and as such must be immediately distinguished. The Constitution of Guyana is declared to be supreme and although this living instrument has created the office of the President it does not limit the exercise of his discretion except in the few instances where he is required to consult with other authorities but consultation does not necessarily mean adherence and obedience to the suggestions or proposals of the consulted authority. The discretion is with him to decide if the list is unacceptable to him or not.
This discretion, it is humbly submitted is not one which can be subject to review by the court since he is acting in his own deliberate judgment. The very constitution has provided the solution where the list is found to be unacceptable to him. The President can then go on to appoint someone is who is a judge, a former judge or could be a judge. The court reviewing his discretion is certainly not the solution provided by the constitution. It is submitted that the office of the President should not be equated with that of other public authorities, other constitutional office holders like the DPP and public bodies.
It is in keeping with public policy that the Head of State not be required to divulge sensitive confidential opinions and information considered in the exercise of his discretion. It is for this reason he is empowered to act in accordance with his or her own deliberate judgment. The court is reminded of the case of Re Blake [1994] 2 WLR 101.
Hence the President is not required to give reasons for his rejection of the list.

Questions C and D
Article 184 of the Constitution provides for the role of the Leader of the Opposition appointed under Article 110. Article 184.
The Leader of the Opposition was not vested with any power either to perform or share the powers of the President or Executive functions of the Government. Both Articles 110 and 184 provide only for the qualifications and tenure of office for the Leader of the Opposition as well as his tenure as a Member of Parliament under Article 156 of the Constitution.

1. He is not an appointing authority and cannot, therefore, share any such authority with the President under Article 161.
2. As Leader of the Opposition, he can only nominate (6) candidates for the appointment of Chairman of GECOM under Article 161 (6) BUT he cannot recommend any of them. Therefore, in this circumstance, once the Leader of the Opposition nominates the 6 candidates under Article 161 (6), the President is at liberty to either accept or ignore the nominations. There is nowhere in the Article which binds the President to accept the nominations or to even consult with the leader of the opposition. He can reject the list in its entirety even if it contains some judges, former judges or persons who can qualify to be a judge since the list in its entirety must be acceptable to him. If the entire list is not acceptable to him, he can reject the list. It should be noteworthy that the term ‘any other fit and proper person’ connotes that the persons in the other categories must also be fit and proper.
The constitution contemplates that a person who fits the qualifications may not necessarily be acceptable to the President. Hence the President has the discretion based on information which may be known to him to deem the list unacceptable. The Constitution speaks to the list being unacceptable to him. Logic therefore dictates that if the President is shackled to a list or list proffered by the leader of the opposition, he is logically incapable of exercising his own deliberate judgement as implied by the ordinary meaning of the sections. “His own deliberate judgment”
If one person is unacceptable it means the entire list can be deemed unacceptable to him. He needs to have six choices, not 4 or 5 but 6. It is trite law that the power to approve necessarily implies a power to refuse to approve. More significantly, the discretion is not controlled by any provision limiting the power and there is no requirement for him to give reasons for rejecting any list.
In an application for mandamus to compel the exercise of a constitutional power when the Kaduna House of Assembly rejected four successive lists of persons nominated by the Governor for the appointment of Commissioners, the Court held that there is a distinction between a power and a duty and mandamus will not lie to compel the exercise of a power which in any case is discretionary. Please see Governor of Kaduna State v House of Assembly [1981] 2 NCLR 722.
The court therefore should not allow itself to be used to dilute, circumvent or in any way threaten the use of the Executive Powers of the President. This would be an abuse of the judicial process. The court is cautioned not to be so used. Further the Applicant has come to this court seeking purely declarations. As such the entire exercise is academic. The findings of the court certainly do not bind the President, the State or any arm of the State.
The position existing under the English Law was that the court will not answer hypothetical questions. If the declaration would serve no useful purpose – graphically described by Pumfrey LJ in his last judgment, Nokia Corporation v Inter Digital Technology Corporation [2007] EWHC 3077 (Pat), as “the legal equivalent of shouting in an empty room” – the court will not entertain such a claim.
The declaration is a discretionary remedy. This important characteristic probably derives not from the fact that the power to grant it was first conferred on the Court of Chancery, but from the discretionary power conferred by the rule of court. There is thus ample jurisdiction to prevent its abuse; and the court always has inherent powers to refuse relief to speculators and busybodies, those who ask hypothetical questions or those who have no sufficient interest. As was said by Lord Dunedin in Russian Commercial Bank and Industrial Bank v British Bank for Foreign Trade Ltd. {1921} 2 AC 438;
‘The question must be real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought. ‘ In other words, there must be a genuine legal issue between proper parties. See Administrative Law 9th Edn. by Professor William Wade and Professor Christopher Forsyth at page 570.Asking theoretical questions is purely an academic exercise and certainly an abuse of the process of the court and this is an issue which the court should consider seriously before exercising its discretion.