Anil NandLall is wrong in relation to Article 161 of the Constitution

Jan 27, 2017 Letters

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Dear Editor,
We must revisit the core purpose which inspired the amendments to Article 161 of the Constitution. The opposition parties felt that the successive heads of the Commission were invariably the puppets to the then PNC government. Parliament sought to give the parliamentary opposition parties, through the leader of the opposition, a say in the selection process of the Chairman of the Commission in the interest of greater transparency and accountability. According to the 1995 amendment in the construction of the list; and in accordance with the 2000 amendment the non-governmental parties in the Assembly are consulted (excluding the party to which the President belongs, or any parties comprising a Coalition which forms the government). Three significant things were included in the Amended Acts in an attempt to procure electoral transparency:
1. The Leader of the Opposition (Minority Leader) after consultations with other opposition parties (if any) in the Assembly composes the list of nominees;
2. The pool of suitably qualified persons is expanded to included ‘any other fit and proper person’; and
3. The president is vested with the discretion to determine suitability.
Again, the argument gets interesting. I agree with Nandlall that the ‘any other fit and proper person’ qualification is disjunctive. It is set apart by commas, and not mere commas to enclose. This is compounded by the disjunctive conjunction (disjunctive pleading) ‘or’. The preceding requirement of a judge and person qualified as a judge is not disaggregated, perhaps because of the common thread binding a judge (practicing or former) and someone who is qualified as a judge (but for whatever reason has not been so appointed). Nandlall suggests that Professor Pollard employs the Ejusdem Generis Rule of statutory interpretation to arrive at his conclusion; simply, ‘any other fit and proper person’ must have judge-like qualities because that person must belong to the same class as a judge or someone who could be appointed a judge.
Since there is no authoritative interpretation (and perhaps will never be, for reasons I will treat with shortly) of Article 161 as amended, it may not be outrageous to suppose that the introduction of the presidential discretion is mainly to temper the selection of persons who the Leader of the Opposition may want to offer as ‘any other fit and proper person’. It is material to note that in the event that the Leader of the Opposition does not submit a list of nominees for consideration then the President reverts to his pre-amendment powers, and is confined to select only a person who is a judge (former or current) or a person who is qualified as a judge; but by no means, ‘any other fit and proper person’. To borrow a phrase, ‘do you get my drift?’
I think where the framers of the amendments erred is in their failure to define what virtues must be possessed by ‘a fit and proper person’; and this is ultimately left up to the discretion of the President. It defeats the latitude afforded to the opposition in their bid to effect a transparent electoral process by casting an opaque veil between the proposal of the opposition and the discretion of the President.
As very persuasively argued by Vivian M. Williams, prominent New York State and Federal attorney, in his pieces “Dancing on Black Ice 1 and 11”, one cannot inquire into the factors which inform the exercise of the President’s discretion (and I maintain that the President’s discretion should properly be confined to persons coming within the purview of the ‘fit and proper’ consideration- which, in this instance, engulfs all of the nominees). The court, as powerful as it ordinarily is, cannot inquire into the basis/bases of the exercise of the President’s discretion. The President’s discretion in this regard is tantamount to prerogative powers. This too is an inheritance from our colonial past. The English Monarch retained special powers for itself in the heyday of the monarchy. Several of those powers have been curtailed, no new prerogative power can be created for the benefit of the monarch, and most of what is retained is exercised by the Executive Arm of government.
So it is President Granger (head of the Executive) who enjoys this discretion/prerogative (selecting the GECOM Chairman) in this instance. Williams refers to the ‘political question doctrine’ in arguing the inviolability of the President’s discretion. This doctrine is properly an American doctrine, but is applicable in principle to the exercise of Granger’s discretion. Simply put, the discretion itself is unambiguous and attaches to a matter of national concern (as against individual rights); this renders it absolute. It is only for the President to exercise. Any attempts by the court to decide how this discretion should be exercised would offend the Separation of Powers Doctrine. The Executive, the Legislature and the Judiciary must always remain separate and distinct entities.
The Judiciary would become indistinguishable from the Executive were it to suggest to the Executive how Executive discretion should be exercised. The court can only inquire into the existence of the discretion and the extent of the discretion; but not the exercise of the discretion. While a president does not have unfettered and impenetrable discretion in every area in which he/she enjoys discretion, Judicial Review cannot pierce the veil of the executive discretion in matters of national concern. So I reject Nandalall’s arguments that the courts enjoy the power of review in such instances, and that this is inconsistent with constitutional supremacy.
Ronald J. Daniels

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