Chief Justice Chang’s ruling is patently wrong

Feb 23, 2016 Letters

Dear Editor,
I have read only the newspaper reports of acting CJ Chang’s ruling on the eligibility of Ministers Felix and Scott to sit as members of the National Assembly (when will we get a High Court website to access court filings and decisions?)
His ruling apparently rests on an interpretation of article 160 (3)(a)(v), which states that Parliament may make provision for “the extraction from the lists and declaration of names of candidates who have been elected…” The acting CJ thus concluded, according to one newspaper account, that the status of a candidate as an elected member of the National Assembly precedes the act of extraction. In other words, all candidates on an elected list are automatically elected members.
As background, the government side is contending that candidates become elected members only after extraction. Those candidates not extracted remain unelected and could therefore be appointed as technocrat ministers according to the constitution.
The acting CJ’s interpretation ignores the rules of careful English, rendering the ruling erroneous. If we accept the ruling’s logic, then the words in article 160 (3)(a)(v) “who have been elected” are redundant and unnecessary, since candidates, by the CJ’s definition, already have been elected. Why would the article repeat itself?
A constitution may contain redundancies, but careful readers of the language would recognize, however, that the words “who have been elected” form a restrictive clause. A restrictive clause functions as an adjective to particularize or confine a noun and alerts readers that the noun is not meant to include all persons, only the identified subset. For example, the phrase “students who study”, with the restrictive clause “who study”, refers only to studying students, but also informs us of two things: one, there exist other students and, two, they do not study.
Similarly, by confining the noun “candidates” with the restrictive clause “who have been elected”, the drafters of the constitution are indicating that there exist other candidates who cannot be so described; that is, they are not elected. Indeed, the Representation of the People Act confirms that the structure of the text in article 160 (3) points to the existence of both elected members and unelected candidates.
Section 11C (4), as one instance, states that each party shall extract from its list “the candidates to become members of the National Assembly”. Likewise, section 98, as highlighted by the AG, states that names shall be extracted from a list and declared “to be the names of the candidates on such list who have been elected.” Contrary to the ruling, therefore, candidates are not automatically elected members. Some (with the exclusion of others) acquire this status (“become members”) only after the act of extraction.
I also note the contention that when we elect a list of candidates, the candidates on the list should logically be called elected members. But the constitution and the relevant statutes persist in the usage of the term “candidates” to refer to those on an elected list and switch to the term “elected members” only to refer to those candidates who have been extracted from the list.
Messrs Felix and Scott were not extracted and therefore did not become elected members of the National Assembly. But because they are candidates, they are extractable and therefore qualified to become elected members, satisfying the requirement for technocrat ministers in accordance with article 103(2) of the constitution.
Sherwood Lowe

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Chief Justice Chang’s ruling is patently wrong

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