Article 161: an unnecessary controversy continues
(Following is an opinion piece written by PPP Executive Member, former Attorney General and Minister of Legal Affairs, Mohabir Anil Nandlall)
Exactly one month has elapsed since the Leader of the Opposition submitted a list of six names to the President for the appointment of a Chairman of GECOM. I can say with virtual certainty that the unsuspecting public would have never predicted the controversy, conflicts, disputations and colliding constitutional interpretations, which have erupted since. A month after, the matter is far from resolved. The President has rejected the names submitted and have offered an interpretation of the relevant provisions of the Constitution which is hopelessly erroneous. In an attempt to clarify, his Attorney General has added even more confusion to the imbroglio. The Leader of the Opposition has requested clarifications and a meeting. This request has been rejected. Instead, the President has proposed that a nominee of the Leader of the Opposition meet with the Attorney General “in order to avoid further misinterpretation/misunderstanding of this important constitutional matter.”
It is unfortunate, that while he regales the nation about social cohesion and national unity at frequent intervals, the President is unprepared to meet with the Leader of the Opposition on such a crucial issue. Such a meeting would have certainly exposed the President to a different interpretation of the Constitution from the one fed to him by the Attorney General. Fortunately, the Leader of the Opposition has indicated his willingness to participate in the engagement proposed by the President.
In the meanwhile, political tensions have risen high. Suspicions have been excited and the fear of rigged elections have returned to stalk this land. In my view, having regard to our political history and from where the imbroglio has originated, these fears are not without foundation. After all, we have gone through the process of appointing a Chairman of the elections commission, on five (5) previous occasions over the past twenty- five (25) years, using the identical constitutional formula. On each occasion, the exercise was completed with seamless ease and was devoid of any rancor or conflict. No one ever expressed the view that the language, spirit of intendment of Article 161 (2) of the Constitution were ambiguous or obscure. Mr. Desmond Hoyte, a Senior Counsel, was shouldered with the constitutional duty of presenting four of those five lists, as the Opposition Leader. He appeared not to have ever encountered any difficulty in construing the constitutional requirements or compiling names for those lists. Over the years, he provided lists with names of Guyanese of diverse and disparate academic qualifications, technical skills and professional pursuits. On each occasion that he submitted such a list, the sitting President, without question, selected one person from the list submitted. Although profound legal and other controversies surrounded the 1992, 1997 and 2001 elections, all emanating from the political Opposition, none touched or concerned the process by which the Chairman of the elections commission was appointed.
The first time that the table has turned and the Opposition has now become the Government, this hitherto, simple and non-contentious process has suddenly become extraordinarily complicated, complex and controversial. The Press has been inundated with opinionated interpretations of Article 161(2). I am as guilty as any of this charge. Every Tom, Dick and Harrylall have suddenly become a constitutional expert. The interpretations proffered have ranged from the moderate to the bizarre. One contributor in the Kaieteur News has been arguing relentlessly that Article 161 (2) contemplates only judges, former judges and persons qualified to be judges and that the phrase “or any other fit and proper person” must be confined to persons of that genus. He argues that the ejusdem generis rule must apply in interpreting that phrase. He asks rhetorically “why would the framers of the constitution place so much emphasis on persons’ with judicial and judge-like qualifications”?
Recently, Professor Duke Pollard, a retired Justice of the Caribbean Court of Justice, entered the fray and has lent his weighty name to a similar argument. The esteemed Professor posits thus: “In this context the applicable criteria of choice are clear, to wit a judge, with specified experience, a person qualified to be such a judge, or “other” fit and proper persons. The employment of the pronoun “other” speaks volumes and must be interpreted to mean that such “other fit and proper persons” must possess the characteristics of the two-named preceding persons.” It is clear, therefore, that though not alluding to it expressly, the learned professor is employing the ejusdem genris rule in his interpretation of Article 161 (2).
I submit with deep respect that both of these learned gentlemen are wrong and are guilty of complicating a very simple matter.
Firstly, the judicial and judge-like qualifications were the sole qualifications for a Chairman of the elections commission under the 1980 Constitution. This was found to be unsatisfactory. In 1991, to accommodate the Carter Formula, the Constitution was amended by adding the words “any other fit and proper person.” The clear intention, obviously, was to expand the qualifications to embrace persons other than those with judicial or judge-like qualifications. The words “or any other” were not whimsically chosen. They were carefully and deliberately chosen. Article 239 (9) of the Constitution provides that the Interpretation and General Clauses Act, Cap 2:01, Laws of Guyana, shall apply for the purpose of interpreting the Constitution. Section (5) of the Interpretation and General Clauses Act provides that the words: “ “or,” “other” and “otherwise” shall be construed disjunctively and not as implying similarity, unless the expression “similar,” or some equivalent expression, is added.”
“Disjunctive” “… denotes an alternative, contrast or opposition between the ideas it connects…” (West’s Legal Thesaurus/Dictionary). “Other”, means “… additional; different or distinct from that already mentioned…” (West’s Legal Thesaurus/ Dictionary); it is “used to refer to a person or thing that is different or distinct from one already mentioned or known about.” (The New Oxford Dictionary of English). Since the expression “similar” or some other equivalent expression is not used in Article 161 (2), and applying the aforementioned lexicographical definitions of the words “disjunctive” and “other”, it ought to be beyond controversy that the Article 161(2) contemplates two different, separate and distinct category of persons bearing no similarity to each other.
It is for the reasons adumbrated above that our Court of Appeal has ruled that the ejusdem genris rule does not apply in Guyana. In Badri Prasad v Demerara Mutual Life Assurance (1981) 31WIR 196 at page 213, Chief Justice George, in the course of his judgment stated “It is clear … that the trial judge was of the view that the ejusdem genris 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.” The context does not so determine nor require.
I submit that that the learned Professor and his counterpart in the Kaieteur News are in the same boat with the beleaguered trial judge to whom Chief Justice George referred.