Dear Editor,
IN the events which have happened in this GECOM Chairman appointment matter, President David Granger became obligated, by both law and fact alike, to make an appointment independently of the machinery of a list, pursuant to, and in furtherance of, the PROVISO to article 161(2) of the Constitution. He appointed former judge, James Patterson, a Guyanese of 84 years. All the ingredients for its constitutionality are present in this appointment. President Granger is entitled to say: on that glorious, sunny, Saturday in May 2015, that the Lord hath giveth, I took and subscribed an oath to fearlessly “… honour, uphold and preserve the Constitution …”; in James Patterson’s appointment, I did just that. En passant, I have noted that PPP Ex Minister, Dr. Leslie Ramsammy, with an unaccustomed degree of political even-handedness and sobriety, quite rightly, has no criticism whatsoever about Justice Patterson’s age. The Leader of the Opposition, Bharrat Jagdeo must have known that one of his nominees on the third list, (former Magistrate and yeoman PPP supporter, Krishendatt Persaud), is an octogenarian too.

Besides, the constitution-makers must have contemplated such an aged chairman when they, presumptively, made “former judge” (presumably one post-compulsory-retirement age) suitable as “fit and proper” for appointment? The Constitution has set no age limit. By sheer common sense and reality alike, a “former judge…” must be a very aged person. And their argument about political bias because of his service as a technocrat (ie. Special Advisor in the Attorney General’s Chambers) is vacuous and utter rubbish. As a former judge, there is (until the contrary is shown) no real danger of him being biased as Chairman. Recent PPP precedents totally discredit their bias argument; and reveal a blinkered viewpoint. Charles Ramson, Snr, appointment as a Court of Appeal Judge, and Commissioner of Information, respectively, after service as political Attorney General is a classic case on point. But, with Orwellian illogicality, while those appointments were not bad for political bias, for them, Justice Patterson is not suitable! They must “have lost their reason.”

Turning now to the ingredients aspect. So, the focus is and must be, on the PROVISO to article 161(2). So, I quote its relevant words viz: “…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 …”

So, we have ingredient (1): the failure of the Leader of the Opposition to provide a list as provided for; Ingredient (2): The President must appoint; Ingredient (3): eligibility as former judge (who is not an “alien”). Only ingredient (1) attracts disagreement in this matter. So, is condition or ingredient (1) satisfied and present? The answer is – yes. The Leader of the Opposition failed to submit a list as provided for i.e a list which (as the learned CJ (ag) ruling has affirmed) means a list that is “NOT UNACCEPTABLE TO THE PRESIDENT”. These are simple, limpid, unambiguous words that any secondary school grammarian understands. But, I should elucidate and expound further as regards ingredient (1). First of all, the undisputed fact that no appointment was made from the three lists submitted by the Leader of the Opposition is conclusive, unimpeachable and irrefutable evidence and fact, that all three “lists” were not acceptable to the President within the meaning of the phrase “not unacceptable to the President” in the provision in article 161(2) that precedes the proviso; this phrase is sui generis – i.e having its historical origin in article 161 itself), and must be read conjointly with the words “acting in accordance with his own deliberate judgment” (article 111(1)). The analogous constitutional case of Adegbenro v. Akintola and Another (1963) 3 All ER 544, Privy Council – not referred to by the learned CJ (ag) – is a most useful authority on this aspect.

Editor, to fully understand and appreciate the correctness of the President’s no-list appointment, we must first attempt to understand the whole essential purpose and reason as to why the proviso to article 161(2) was put there by the legislative draftsman. The proviso quoted above, by law, operates to override, subordinate, defeat, or negate the provision that precedes it (here the provision under and by which the Leader of the Opposition submit a list) and so when the Leader of the Opposition failed to submit an acceptable list (as explained above) his rights in article 161(2) ended, became subordinated, defeated and negated by the President’s right and power (which kicked in, to use a popular saying) to proceed to make an appointment independently of the list machinery (as happened in this matter). Secondly, this emphasis on a no-list appointment is the making and intendment of the Constitution makers themselves; it is intended, most sensibly, to avoid a dysfunctional interregnum at GECOM. And while the law can sometimes be an ass, it cannot be so asinine as to suppose that the question whether the Leader of the Opposition has failed “to submit a list as provided for” (the proviso) is one, to be answered by the Leader of the Opposition himself; he cannot be a judge in his own cause. That is an incongruity. It must be, and can only be, “the President” who is constitutionally vested with the authority to answer that critical question of evidence/fact.

Editor, I have read article 161 as a whole (not just sub-article 161(2)) as imposing a heavy burden on the Leader of the Opposition to name six credible nominees. This heavy burden requires him to be guided by the five unwritten tenets of: care, caution, consideration, commonsense and conscientiousness (these I call the 5-Cs); he chooses not to be guided by the 5-Cs at his own real risk (like the sword of Damocles) of having his list rejected by the President as unacceptable to him. Put in nomenclature: the Leader of the Opposition is not permitted and cannot foist any mixed list of Tom, Dick, Mary or Harilall as nominees on the President and make it the President’s legal duty to appoint one of them. It is of some considerable significance article 161 provides for the appointment of a TEMPORARY CHAIRMAN in similar way as to how a chairman is appointed (161(7) &(8)). This supports my point about no-list appointment being both a legal necessity and a virtue, as it avoids an interregnum (i.e a leaderless GECOM) which is a vice.

Turning now briefly to the other controversy that the President has to state reasons for rejecting each of the six nominees. No useful purpose can be served here by any forensic autopsy of that part of the learned CJ (ag) judgment. But, as devil’s advocate, I submit to us that reasons (none being stated in article 161) can only mean some CONSTITUTIONAL reason to be deduced or implied from the scheme of article 161; and being constitutional in that context any reason must be necessarily vague and general without specific or particularity (e.g. lacking integrity, impartiality or relevant intelligence, singly, or in combination as each individual case is. The condition of appointment i.e. being “fit and proper” is expressed in article 161(2) in general terms. (As to the generalization of reasons in a constitutional context see the Privy Council case of Williams v. Government of Saint Lucia, 14 WIR 177 where when the statute required the statement of reason i.e the “public purpose” for the acquisition, it was held that the government’s broad general

statement/reason “development of tourism” was a sufficient statement of a “public purpose” to satisfy the requirement of the statute). Besides, on one very plausible view (as seems to be the correct interpretation) article 161 (2) only contemplates one (1) list only. So, reasons can only be of academic purport, otiose, as it can serve no useful purpose when no further list is to be submitted, or is submittable. And this one list interpretation is supported by the interregnum point (adumbrated above) when one considers that multiple lists (eg 2nd and 3rd, just imagine a 4th in this case) facilitates and conduces towards the very vice and mischief of an (inordinate) interregnum which, a no-list appointment (the proviso) and a temporary chairman, were obviously intended and contemplated to obviate or prevent. For these reasons, I consider the learned CJ(ag) “modern thinking” to wit the imported foreign common law / administrative law (i.e. judge – made law) which appears to have influenced the ruling as to reasons, to be inconsistent with the tenor and spirit of article 161 and accordingly void (article 8). Consider too, Kindred issues of sufficiency or adequacy of reasons(the President’s, of LOs); detailed or generalised: In the SN editorial – Sunday October 22nd–with an un-accustomed degree of political objectivity and candour, it is stated that “it is not as if Opposition Leader Bharrat Jagdeo’s lists were a perfect template in terms of suitable candidates …” What an unwitting endorsement of the President’s rejection of the three lists.

I end with this: article 161 (2) and 111 (1) respectively has constructed around “the President” an impregnable wall of constitutionality regarding the appointment of a GECOM chairman. So, come hell or high water, the Opposition wants to breach that wall. Marcel Gaskin sought (as a surrogate) to somehow cause that wall to be, judicially, breached by his application on obfuscatory and obscure pleadings for an interpretation of article 161(2). That contrivance was thwarted. Earl Hamilton is of the view that the Leader of the Opposition’s first list “was meant as a provocation” (GC – 09-10-2017) If so, the third list was provocation on stilts. He ignored the 5-C’s at his own risk. The President did what the proviso mandates – an appointment, so as to avoid the vice and mischief of an interregnum. Former Judge James Patterson’s appointment is a fait accompli.
Regards

Maxwell E. Edwards