You cannot ask the CCJ for an opinion in such circumstances

Jan 17, 2017 Letters

---

Dear Editor,
This letter is prompted by the following newspaper reports: “PPP willing to approach CCJ to interpret constitutional provision” (KN January 13, 2017); “Jagdeo wants CCJ to interpret law on GECOM Chair” (GC Friday January 13, 2017); and “AG queries haste to complete Presidential third term appeal” – KN Saturday, January 14, 2017; and “February is set for ruling on third – term appeals” SN, Sunday January 15, 2017.
Since, article 161(2) provides relevantly that the chairman (not being a person who is an alien) “…. Shall be a person who holds or who has held office as a judge… or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation…” a question about the interpretation of this article firstly involves the jurisdiction of the High Court for its ruling (see article 133(1) (a)). Whatever the outcome, I would anticipate that the unsuccessful party would then appeal to the Court of Appeal and then invoke the appellate jurisdiction of the CCJ.
This is no summary expeditious process. Only God knows how long from High Court to Court of Appeal to ruling by CCJ would take. And I do not think, although I express no concluded opinion, that a mechanical facility or process of what is called “leap – frogging” to the CCJ is available in a matter of this sort (this not being a matter of its original jurisdiction in interpretation of the Treaty of Chaguramas). Be that as it may, I submit that an action for a declaration that the President has acted unconstitutionally, involving as it would, an interpretation of article 161(2) has no real prospect of success.
First, the President is the only constitutional functionary who is peculiarly entitled to “act in his own deliberate judgment” (article 111 (1), 161(3)(a)). When the President acting pursuant to article 111(1) invokes this unfettered discretionary power in deciding whether the list of nominees are “not unacceptable” to him, no Court can declare that he has improperly, arbitrarily, unreasonably, or otherwise exercised that discretionary power or function. Both on principle, and authority alike (Adegbenro V, Akintola And Another (1963), 3All ER, 544 PC that issue of non-acceptability, because of the plentitude of such discretionary power, is what in jurisprudence, is known as a non-justiciable issue (ie no court ought to, or will take cognizance or try it and give a decision/ruling on it, save to say that it is not a justiciable power the exercise of which it can review).
Second, the ejusdem generis principle – general words takes their genu or character or nuance from the character of the Specific words used, applies; and by it, the President is entitled to demand that nominees be persons of judge-like attributes of impartiality etc. This second proposition merits further elaboration, as it has been a source of considerable dispute and criticism of what the President has intimated is his benchmark for appointment. Given such plentitude of discretionary power (as I would articulate below) the President by his intimation of a preference for a judge, or judge-like person was within the boundaries of his constitutional power; and that is all that matters.
Since neither President Granger nor Mr. Jagdeo are endowed with psychic powers to go into the state – of – mind of any nominee as to his/her capacity for impartiality, both can only, sensibly, in their respective functions of nomination and appointment, act on the empirical or demonstrated evidence of impartiality, or alternatively take the approach of a preconception that a judge (sitting or former) by reason of such profession, would bring impartiality to the office of GECOM, Chairman, as he/she does, or did, in the court. What I understand the constitution- makers and draftsman to have said in article 161(2) is, inter alia, that a judge is a classic, or per force, a “fit and proper person” and any other person not being a judge/Magistrate/Lawyer must be a person with the signal hallmark or attribute of a judge – a disposition of impartiality and neutrality.
If the draftsman of article 161(2) did not intend the preceding special or specific wording as to “judge” to have any limitative or restrictive effect or impact on the generality of the words “any other”, nothing would have been easier or more simply than for them to have drafted article 161(2) without those special reference – words viz “judge or person qualified to be a judge”. They simply could have drafted – “shall be a person to be appointed by the President …” But they did not. So, there must have been some significant constitutional purpose in such specificity of wording. What, then, is that purpose? I submit the President rightly comprehended and apprehended that purpose when he intimated his preference for a Judge or Judge-like person.
Maxwell E Edwards
Attorney-at-Law

---

---