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The President must say why he rejected Jagdeo’s six names
Dear Editor,
In the Bahamas case, cited in my last letter, it is clear that the issue of whether a person is fit and proper for the purpose of the Medical Act in the Bahamas turned largely on whether that person was guilty of any professional misconduct or malpractice.
In Re Chikweche [1995] 2 LRC 93, the Supreme Court of Zimbabwe had to consider whether the applicant, a lawyer qualified to practise law under the Legal Practitioners Act which contains, apart from the prescribed legal qualifications, a “fit and proper person” requirement.
The applicant was a Rastafarian who wore dreadlocks. A judge refused permission to register him as a lawyer as is legally required in that country, on the ground that the applicant was not “properly dressed.”
The judge specifically objected to the dreadlocks. The applicant challenged the decision on the ground that it infringed his fundamental right to freedom of conscience guaranteed by the Constitution.
In dealing with the “fit and proper person” issue, Chief Justice Gubbay stated: “Construed in context, the words ‘fit and proper person’ allude, in my view, to the personal qualities of an applicant- that he is a person of honesty and reliability. See State v Mkhise 1988 (2) SA 868 at 875. I am not persuaded that the lawmaker intended by use of the phrase to embrace the physical characteristics of an applicant.
For appearance bears no rational connection with the object of maintaining the integrity and honour of the profession.” The Court ruled that the Judge was wrong to reject the applicant as a person who is unfit and improper because of his hairstyle.
Importantly, in Law Society, Transvaal v Behrman 1981 (4) SA 538, the South African Court of Appeal ruled that whether an applicant is “a fit and proper person” for admission as an attorney-at-law, is a question of fact and it is not left to the discretion of the Court hearing the application.
In Democratic Alliance v President of the Republic of South Africa and others [2013] 2 LRC 617, the Constitutional Court of South Africa, comprising of 11 judges, had to consider section 179 of the Constitution of the Republic of South Africa 1996 established a National Prosecuting Authority, with a National Director of Public Prosecutions as its head. Under s 179(1)(a), the National Director was to be appointed by the President. Section 9(1)(b) of the National Prosecuting Authority Act 1998 provided that any person appointed to the position of National Director had to: “(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and (b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.”
A challenge was launched, on the ground, inter alia, that the National Director was not a “fit and proper person.”
The Court ruled that it was not the President’s function to determine whether a person to be appointed to that position is a fit and proper person; that requirement is “an objective jurisdictional fact.”
Further, that in assessing the qualifications of an applicant for that position, the President is enjoined by law to act rationally and reasonably.
Applying these principles to Article 161(2) of the Constitution of Guyana, it is clear that it is not within the President’s power to determine who is fit and proper person; that who is fit and proper person is an objective fact. That the President’s discretion lies in determining whether a person is acceptable or not. That in exercising this power, the President is obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily.
He must objectively assess the person’s ability to discharge the functions of his office, their integrity, political impartially and such like. In light of the foregoing and to avoid further impasse, it is incumbent upon the President to disclose the grounds upon which he has found each of the six candidates, “not unacceptable.”
Mohabir Anil Nandlall, MP-PPP
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