The Powers of the President under Article 161

Jan 14, 2017 Letters

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Dear Editor,
It is now dated news that the President has rejected the list of nominees presented to him by the Leader of the Opposition to fill the position of Chairman of Gecom in accordance with Article 161(2) of the Constitution. In so doing, the President has etched his name in history as the first President to have done so since the Carter Formula was implemented for the 1992 Elections. So we are now navigating in unchartered waters.
The President has compounded the issue by the erroneous impression which he conveyed when he spoke to the media at a function at State House last Sunday. In his remarks, the President communicated the misguided impression that only judges, former judges or persons qualified to be appointed as judges to the High Court or an appellate court qualify to be appointed as Chairman of the Elections Commission.
The President omitted to disclose that in addition to those possessed of legal qualifications, the Constitution also provides for… “or any other fit and proper person” to be appointed as well.
As a result of a deluge of public criticisms, Attorney-General, Mr. Basil Williams has conceded that Article 161(2) also caters for the latter category of persons. However, characteristically, the AG has added a new set of confusion in his attempt to clarify.
Two very conspicuous blunders were made by the AG which ought not to be left in the public domain, unchallenged. Firstly, the AG contends that after rejecting lists submitted by the Leader of the Opposition, “the President will be forced to make an appointment.”
I submit that the President has no such power. It is only in the event that no list is submitted by the Leader of the Opposition that the President has a power in Article 161(2) to make a unilateral appointment. I am not only fortified in my view by the letter of the Article but also by its spirit and the intendment of its framers.
The Carter Formula was intended and designed to create, as far as possible, a politically consensual and balanced Elections Commission. Hence, the Commission is composed of three (3) commissioners nominated by the Opposition parties in Parliament and three (3) commissioners nominated by the governing party, along with a Chairman who has a casting vote. This Chairman comes from a list of six which emanates from the Leader of the Opposition but which must find the acceptability of the President and from which he is empowered to choose one. If the Chairman is to be chosen by the President alone, it would destroy the vital equilibrium which the Elections Commission was intended to possess.
Secondly, the AG posits: “the Constitution gives him [the President] that power to determine who is a fit and proper person.” The Constitution does no such thing. The Constitution resides in the President a discretionary power to determine whether the persons are unacceptable or not; not whether they are fit and proper person. Whether a person is fit and proper is to be objectively determined having regard to the context and circumstances which are under consideration.
The term “fit and proper person” can be found in Constitutions and in legislation throughout the world. Expectedly, it has been the subject of judicial interpretation in various territories. In the U.K., Lord Bingham, speaking on the phrase “fit and proper person,” said: “This is a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used.
It is an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do.” (R v Crown Court at Warrington, Ex p. R.B.N.B [2002] 1 W.L.R. 1954, 1960.
In Shanmugavel v Bahamas Medical Council [2012] 3 LRC 448, the Bahamian Court of Appeal had to consider the Medical Act in determining whether the Appellant, a medical doctor, was qualified for renewal of his registration to practise medicine in the islands. Among the requirements laid down by the Act to be registered to practise medicine was that the person is “a fit and proper person to practise medicine in the Bahamas.”
In the course of the judgment, their Lordship observed: “the expression ‘fit and proper person to practise medicine in the Bahamas’ is not defined in the Act and it would be inappropriate, we think, for us to attempt any exhaustive definition of the expression. Suffice it to say though (sec) 15 of the Act catalogues some conduct which may lead to disciplinary action and sanctions, including removal of a medical doctor’s name from the register, and it is to that, and the plethora of English authorities, we looked at in an attempt to determine whether the conduct of which the appellant was accused was the kind of conduct that would justify a finding that he was not a fit and proper person to practise medicine in the Bahamas.”
Mohabir Anil Nandlall

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