Op-Ed: The years lost

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Below is an opinion editorial done by Attorney-at-law, Member of Parliament and former Attorney General Mohabir Anil Nandlall:

Last Thursday, The Court of Appeal of Guyana upheld Chief Justice (Ag) Roxanne George’s decision that President David Granger acted in compliance with article 161(2) of the Constitution when he appointed Justice James Patterson as the Chairman of GECOM. In R v Commissioner of Police of the Metropolis (1968) 2 QB 150 at page 154, Lord Denning, in addressing the right to comment on matters of public interest, including rulings of the Courts, adumbrated thus:

“It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to Appeal or not.”

It is in the exercise of this right that, I respectfully, offer a few comments on the ruling of the Court of Appeal in the aforementioned case, which certainly, qualifies as a matter of public interest.

I am not surprised by the ruling. I am disappointed by it. The Judges who constituted the Coram of the Court, are Judges before whom I have practiced during the entirety of their individual judicial careers. It is for this reason that at the commencement of the hearing of the Appeal, I made it pellucid that I harbour no doubt that their Honours know how Article 161(2) manifested itself in the 1980 Constitution; the legal rationale and political exigencies which precipitated its change in 1991, inclusive of the Carter/Price formula; its evolution to its current form; the seamless ease with which it was interpreted and applied in the past; and the number of Chairmen it produced for GECOM, without any controversy, whatsoever.

Each of the three Judges delivered a summary of their ruling on Thursday, with a promise that the entirety of each will be made available shortly. Based upon what was delivered from the Bench, I am fortified in my speculation in relation to the matters outlined above, vis-à-vis article 161 (2) of the Constitution. In fact, in the course of rendering the summary of their rulings, their Honours upheld almost every submission which I made and rejected almost every contention of the Attorney General and his team of Queen’s Counsel. Each of them recognised that the framers of article 162(2) of the Constitution intended a paradigm shift from the President appointing a Chairman of GECOM, unilaterally, from only the judicial category of persons, to a mechanism involving an engagement between the Leader of the Opposition and the President, whereby the President is empowered to select one from a list of six persons from the said judicial category, as well as, from an additional category of “or any other fit and proper person” with the objective of producing a consensual candidate to serve as Chairman of a political bi-partisan Elections Commission, who is authorized with a casting vote, to break political deadlock and strike that delicate equilibrium, so requisite, for such a Commission to function smoothly.

Although, they recognised this intent and expressed the unanimous view that the article must be construed to achieve this intent, and that the President must act reasonably (objectively), yet they came to the bewildering conclusion that the President acted in accordance with the letter and spirit of the Constitution when he unilaterally appointed Justice Patterson, after rejecting 18 outstanding professional Guyanese, including, a retired Justice of Appeal, a retired High Court Judge and several prominent lawyers, qualified to be Judges.

It was both embarrassing and torturous to listen to the interpretative gymnastics and juridical ingenuities embarked upon in attempting to clothe this incongruous decision with jurisprudential rationality. One learned Judge opined that the Constitution mandated the Leader of the Opposition to engage the President with the six names before the list is submitted to the President, lamenting that same was not done. As a result, concluding that “the manner in which the lists were submitted was not reasonable. The President could not have been expected to make a choice without some engagement of the names and the CVs and the various characteristics he had put in place; there had to be that engagement.” This constitutes nothing short of a judicial amendment of article 162 (2) of the Constitution!

Nothing in article 161(2) requires such process. You will note the care taken to absolve the President from any blame in the process. You will also note that the Constitution has put in place the qualifications of the persons who are to be appointed, leaving no room for the President to inject any subjective “characteristics.”

Another said that to mandate the President to choose from a list would lead to an “unreasonable fettering of his discretion.”! This is the very Judge who, minutes before, enunciated that the framers of article 161 (2) intended to replace ‘unilateralism’ with ‘consensualism’ in the appointment of the Chairman of GECOM, but who now fails to recognize that the quintessence of that ‘consensualism’ is the confinement of the President’s power of appointment to the six names submitted to him by the Leader of the Opposition!

Yet a third, in an attempt to justify this President’s rejection of three lists of 18 names against other Presidents, who chose a name from one list of six submitted to them by the Leader of the Opposition, posited thus: “This has to do with the exercise of discretion of the particular President in each of those cases. They each saw it fit to choose from the list as provided for, in keeping with the approach of the amendment of article 162(2) of the Constitution.” This President however, did not “see it fit” to choose 1 from 18, yet his resort to the proviso was faultless!

In short, the ruling of the Court of Appeal, bereft of its esoteric content, is that a President can simply reject a list of six names submitted to him by the Leader of the Opposition, irrespective of how qualified and suitable they may, objectively be, and resort to appointing one of his own choosing, from the judicial category, by utilizing the proviso. This ruling, therefore, takes us over a quarter of a century back in time to what existed in the 1980 Constitution, whereby the President was empowered to unilaterally appoint a person of his own choosing from the judicial category!

I sincerely hope that the Caribbean Court of Justice will restore those lost years.

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