By Maxwell .E. Edwards

In 1979 in a landmark constitutional case in our Court of Appeal, this was said: “a constitution is not to be interpreted as if we are living in a classic void, or on some idealistic Utopian plane …” The CCJ has done just that, in its majority invalidation of the appointment of Justice (Retired) James Patterson as GECOM chairman. Some are impressed; the “judicial guidance” to the elected President, and Leader of the Opposition posited by the CCJ is said to be “Solomonic.” I emphatically disagree. For me, it is nothing but a naked encroachment by that majority into the separate and forbidden territory of our local politics. Yes, the ruling is authoritative; it is final. But given its generalities which portend difficulty of compliance, is there finality of its ramifications? And, I will show, its bizzare consequences.

As we await the written reported judgments of the majority (Saunders, P, Anderson, Rajnauth – Lee, JJ.) in the Law Reports for clarity (as to what is ratio decidendi, what is obiter dicta) the judgment is that our Constitution anticipates consensus between the President, and Leader of the Opposition (“LOO”) in the GECOM chairman appointment process. So the President MUST select a nominee as chairman. The constitution does not permit “unilateralism” in appointment by the President. I submit that such “consensualism” is judge-made law in the sphere of constitutional interpretation. Respectfully, it is classic judicial overreach. It renders the proviso (in article 161(2)) which the President invoked in the appointment of James Patterson unnecessary, nugatory and useless. It is tantamount to a repeal in part, which the Judiciary (i.e. High Court, Court of Appeal, CCJ) has no constitutional jurisdiction/power to do. Only our Parliament by an absolute majority of the National Assembly has such repeal power. The CCJ’s invalidation of “unilateralism” is nothing but fanciful deniability. Carter and Price (the purveyors of the so called Carter – Price formula which the CCJ used for its “consensualism” finding) did not (I repeat for emphasis) DID NOT draft our article 161 (2) (as it presently is with the overarching words “not unacceptable to the President”) nor, was it drafted at Westminster in England. And the local draftsman, with local knowledge of our adversarial politics, must have materially anticipated a LOO of the likes of Jagdeo, when the proviso was drafted to cure the mischief of the real likelihood, perhaps virtual certainty, in an appointment, hiatus.

And, I also draw particular attention to article 111(1) which entitles and requires the President in the performance of such functions as the appointment of a GECOM chairman, to “act in HIS OWN DELIBERATE JUDGMENT” in deciding who, if any, of the nominees submitted by the LOO is acceptable to him. Because the framers of our constitution invested article 111 with the deepest level of entrenchment (in layman’s terms the framers made it into one of the eleven (11) most sacrosanct, important and valuable articles in our constitution) it cannot be right for any Court to trivialize or undermine the purpose, significance and importance of the words “his own deliberate judgment”. The President’s judgment is not substitutionable, wholly, or partly, by any other person’s or authority’s judgment (not even the Judges of the CCJ). It is not, and cannot be, some shared judgment. The private law of contract notion of consensus (i.e. consensus ad idem) has absolutely no place or relevance in this aspect of our public law. It impairs, subverts, dilute, waters down the whole beneficial constitutional purpose of article 111(1) seminally rendering it otiose and mere surplusage. That is wrong.

Mr. Editor, there is something bizzare and inexplicable in the notion (given legal effect by the CCJ) that the LOO who has not the Constitution’s permission to “act in his own deliberate Judgment” does not have to give the elected President reasons for his choice of nominees (the presumptively biased likes of, inter alia, Ryhana Shaw, Gerry Gouviea, James Rose); but the elected President who has the Constitution’s permission to make the decision in “his own deliberate judgment” has to give the unelected LOO reasons for rejecting his nominees!!. Surely, clarity is needed here.

I turn now briefly to GHK Lall’s commendation of that majority ruling as “Solomonic” (“The CCJ’s decision is Solomonic” Kaieteur News, Wednesday June 19, 2019). He commends it for its “judicial guidance”. Now, in biblical parlance, King Solomon was wise. The story is told of how he, with deceptive cunning, discovered who the biological mother was by threatening to cut the baby in half. But I would suggest to GHK Lall that his analogy is a most imperfect one. There is no question as to who, extantly, is the true mother/custodian/guardian of this Republic. In May 2015 the Guyanese people entrusted that custodianship/guardianship for the next five (5) years to David Arthur Granger, as the presidential Candidate, of the APNU+AFC. A President must be permitted to be, the President. And no President is expected to, nor permitted, to yield to the whims, fancies, arbitrariness or political vicissitudes of any LOO. So I argue that if there is any “Solomonic” decision in this matter, it is not that of the CCJ; what is wise, is the telescopic, drafting mastery of the draftsman in his decision to have the proviso to article 161 (2).

En passant, I note a pathetic letter written, with an accustomed degree of comedy of errors, by Charles S. Ramson (“If the President truly respects the constitution elections must be held within three months” – Stabroek News Wednesday June 19, 2019).

I argue that the President is well advised, if he has taken as a matter of interpretation, one possible view that a “sensible approach” (to use the phrase of Saunders, P. in the GECOM Chairman appointment ruling), given the constitutional non-justiciable power of GECOM to POSTPONE the elections beyond any date proclaimed by the President, to be guided by GECOM’s authoritative disclosure, or information, as to its (UN) READINESS to conduct general elections. This you might think is sheer, unmitigatable common sense. (I would suggest Ramson read my letter under caption “If the APNU+AFC Government will be “illegal” who then will be the legal government”-Guyana Chronicle Tuesday March19, 2019.) Yet a few extracts from that letter suffices. “… to ensure the impartiality and independence of GECOM the constitution itself (article 226 (1) 8(7) has prohibited GECOM from being directed or controlled directly by any authority (including the President)” And, “If GECOM by a majority decides its incapacity, it is settled law that the court has no jurisdiction to entertain any question as to the validity of that decision (article 226 (6)” I submit that GECOM’s decision to hold House to House registration is a decision that cannot be questioned in/by any court. And how pious, and feeble his criticism of the President’s preference for “credible elections” rather than “free and fair” elections. Surely, as a lawyer Ramson must know that credibility goes to acceptability of the results of the general elections. The President attracts no constitutional opprobrium if being a true constitutionalist he prefers the legal nomenclature of “credible elections” to the over used politician’s jargon of “free and fair.”

I end with this: general elections have consequences; an elected president is one (arguably the most profound) consequence. Those, not elected has no right to some pretense of constitutional parity with the President. The Constitution does not in this matter require the LOO’s agreement/consensus (unlike as with the appointment of a chancellor, and Chief Justice – article 127 (1).

If agreement/consensus was intended the draftsman as he did in article 127(1) would have so drafted article 161(2) He did not. And how is “consensus” to be achieved in the workings of the appointment process, if the President is not permitted to indicate to the LOO, “criteria” for the qualification of nominees if they are to be acceptable to him? Constitutional workability will be tested.

I am intrigued by the CCJ’s veiled threat to issue coercive orders (the “consequential orders”) against the Government/Attorney General, given the clear prohibitions against such orders in our State Liability and Proceedings, Act, Cap 6:05 Laws of Guyana