The AG is right about the President’s constitutional power

Jan 20, 2017 Letters

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Dear Editor,
I note with both commendation  and condemnation a letter by learned Counsel Mohabir A. Nandlall (“The Power of the President under Article 161” K.N  Saturday, January 14, 2017) I commend Counsel for his industry of research as to the words “fit and proper”; but I condemn him for misutilizing and misapplying those case law to our article 161(2) powers of the President, in arriving at his conclusion in criticism of the learned AG, that under article 161(2) the President has no power to make a unilateral appointment in  the event as has happened, that Mr. Jagdeo did submit a list; and that it is not the President’s function to decide who is a “fit and proper person”.
I entertain not the slightest doubt that the learned Attorney General (Basil Williams) is right that the President has a constitutional power to unilaterally appoint if Mr. Jagdeo omits or refuses to submit a fresh list as requested; and also the shared but ultimate function to decide who is a fit and proper person is conferred on the President. Briefly, this power and function respectively exists not expressly, but ex necessitate legis (ie by necessary implication of law, or by legal necessity). They both derive from the crucial words “not unacceptable to the President” the purport and impact of which I have endeavoured to articulate above.
Whatever the Carter formula might have engendered as regards politician’s expectation, the question is not what Carter formula envisaged, but what the existing law, sensibly interpreted, means. I argue that the right, and power of the President of rejecting the nominees in the list submitted, necessarily implies a correlative duty to submit a new list; inevitably a constitutional hiatus, or, an interregnum would result, as no Chairman (in the event of an existing vacancy) was appointable if such correlative duty does not exist, or, a unilateral power to appoint, in the event of refusal to submit a fresh list. And, yet that would be the result, if Mr. Nandlall’s argument be right.
So, it cannot be. An argument which embraces a constitutional interregnum cannot be right. This is constitutional reality; not abstract theory. Article 161 (1) must be interpreted with common sense and logic to promote, not impede or frustrate its workability. Finally, I plead for space to revisit briefly a matter on which I had written an open letter to both President Granger ad Mr. Jagdeo (published in both KN and GC) in which, inter alia, I had cautioned about a Judge whose compulsory retirement is impending commencing hearing a fresh or new case.
I could then with equal facility of reasoning, have cautioned against a rush to completion of part – heard, so that justice would not thereby miscarry, I notice that the appeal in the President – term – limit case is now set for ruling on February 15th, 2017 (see “AG queries haste to complete presidential third term appeal”. – KN, Saturday January 14th, 2017; “February is set for ruling on third – term appeal” – SN, 2017 – 01 – 15).
I, myself as an officious bystander, see this haste to ruling, with some alarm and disquiet. With General Election not due (or anticipated) until 2020, some three (3) years hence, and accordingly it cannot be rationally contended that time is of the essence, or that some serious compelling reason exists, it must be a matter of some considerable curiosity, and intrigue, that this matter is set for ruling without the fullness of oral arguments, but on the basis of written submission not submitted at the instance of the parties, but ordered by the Court.
This is a departure from orthodoxy. And the departure is even more alarming, even as it has happened over the objection of one of the parties (the AG by prior written request on reasons proffered, and by Counsel representing). What if the written submissions (which are normally only complimentary to oral arguments) are not terribly useful and the court needs further assistance or clarification? Besides, it is settled practice that when there is a change of Counsel (in this case the retirement of the SG, Sita Ramlall) the Court exdebito justitiae (ie arising as a matter of right, a debt of justice) would allow the affected party sufficient time (in all the circumstances) to retain and brief new Counsel – it is a “fair hearing” fundamental right. Be that as it may, I desire to restate my position on this matter, stated in July 2015, viz “
Constitutional interpretation on a question of the type raised by Cedric Richardson V. Attorney General And Raphael Trotman, inevitably raises, inter alia, nice questions as to locus standi and jurisdiction. Article 177 (4) raises an interesting question as to jurisdiction, given the marginal note to article 90 viz “Qualification for Election”. Should not the Chief Justice (ag) have declined jurisdiction to entertain the action in Cedric Richardson? (“The CJ’s decision on term limits” – S.N. Monday July 20th, 2015). Now, I would only add that a “ marginal note” has interpretative constitutional force (see section 57 (3) of the I.G.C.A. Cap. 2:01 read with article 232 (9) of the Constitution). And, that it is elementary that a jurisdictional point can be taken at any stage in any court ( Butler V. Theking (1939) AC 484) and if not taken by a party, ought to be taken by the court ex mero motu (i.e. of its own motion). If Chang, CJ (ag) had no jurisdiction, his decision is void and of no legal effect.
Maxwell E. Edwards
Attorney – at – Law     

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