Latest update December 25th, 2024 1:10 AM
Jan 18, 2017 Letters
Dear Editor,
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 drafters 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.
It must be a matter of sheer common sense and constitutional logic, that if the drafters 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 simplier 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.
Besides, the Constitution-makers having created their Frankenstein (ie a monster) by the words “not unacceptable to the President….”, one cannot expect the court (not even the CCJ) to prevent that Presidential right of nonacceptability, from devouring article 161(2) and effectively (perhaps efficiently) reducing and relegating it to a status of non-justiciability on the issue of the President’s judgment that nominees are unacceptable, if they do not satisfy his benchmark of being a Judge or demonstrated Judge-like qualities. This matter I submit is of Adegbenro, supra elucidated with clarity in the analogous constitutional case where the crucial and operative words were “… it appears to him” – words of subjectivity (not objectivity).
The court there said “By these words therefore the power of removal is at once recognized and conditioned: and since the condition of constitutional action has been reduced to the formula of these words for the purpose of the written constitution, it is their construction and nothing else that must determine this issue” (the issue there being the removal of the Premiere by the Governor General).
Substitute the word “removal” by, appointment, and juxtapose that formula in the Adegbenro case with the article 161(2) formula which contain the express words “not unacceptable to the President”, and the implied words: “in his own deliberate judgment”, and the analogous case of Adegbenro is a high persuasive authority supporting the constitutionality of the President’s rejection.
The point cannot be stressed enough that a demonstrated judge-like attribute of impartiality is one of (if not, perhaps the dominant) consideration that could, by constitutional permission, influence and inform President Granger’s judgment (within the words “his own deliberate judgment”). And if this was the thinking of the President at the State House media event (however periphrastically expressed) that view is constitutionally sound, and attracts no constitutional opprobrium.
I argue that the words “not unacceptable to the President”, monstrous in their affect, are clearly intended to ensure with laser – like, pointed efficiency (without any reliance on the generality of “his own deliberate judgement” subjective power in article 111(1)), that the Leader of the Opposition do not opportunistically foist any unfit Tom, Dick, Harry or Mary on the President, and make him/her the President’s constitutional duty to appoint, as GECOM Chairman. The view, misconceived and constitutionally inadmissible as it is, that the President was/is obligated to appoint one of the six nominees originally submitted.
Mr. Jagdeo, is roundly disapproved of and repelled by the reasoning in Adegbenro which went like this: “The difficulty of limiting the statutory power of the Governor General” (President) “in this way” (limiting him to appoint one from the original list submitted by Mr. Jagdeo) “is that the limitation is not to be found in the words in which the makers of the Constitution have decided to record the description of his powers. By the words they have employed in their formula ‘it appears to him’” (not unacceptable to the President) “the judgment as to the support enjoyed by the Premier” (judgment as to fit and proper person) “is left to the Governor General’s” (President’s) “own assessment and there is no limitation as to the materials on which he is to base his judgment or the contacts to which he may resort for the purpose” (emphasis mine)
Such, I submit, is also the overriding and overarching nature of President Granger’s power of rejection, and appointment; and this is so, even without factoring in the coexisting and co-extensive power to act “in his own deliberate judgment” in relation to those nominees. No court can impugn, or, usurp his assessment and judgment. Nor, is it as if such a benchmark or starting point imposes some legal impossibility; or practical improbability bordering on what lawyers know as frustration.
Maxwell E. Edwards
Attorney-At-Law
Dec 25, 2024
Over 70 entries in as $7M in prizes at stake By Samuel Whyte Kaieteur Sports- The time has come and the wait is over and its gallop time as the biggest event for the year-end season is set for the...Peeping Tom… Kaieteur News- Ah, Christmas—the season of goodwill, good cheer, and, let’s not forget, good riddance!... more
By Sir Ronald Sanders Kaieteur News- The year 2024 has underscored a grim reality: poverty continues to be an unyielding... more
Freedom of speech is our core value at Kaieteur News. If the letter/e-mail you sent was not published, and you believe that its contents were not libellous, let us know, please contact us by phone or email.
Feel free to send us your comments and/or criticisms.
Contact: 624-6456; 225-8452; 225-8458; 225-8463; 225-8465; 225-8473 or 225-8491.
Or by Email: [email protected] / [email protected]