The GECOM Charman must have the attributes of a judge

Jan 28, 2017 Letters

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Dear Editor,
I have read a letter by learned Counsel Mohabir A. Nandlall (“GECOM Chairmanship: complicating a very simple matter” S.N, Saturday January 21, 2017). Pedantry at its worst! There is nothing simple about constitutional interpretation; but some matters of interpretation would be less complicated than others (recent President – third – term, and Budget-cut matters of constitutional interpretation refutes such myths).
Mr. Nandlall, takes the position that article 161(2) does not allow the President to say (as I understand the President) that he will only appoint someone who, (in his deliberate judgment), is possessed of the judge-like attributes of integrity, impartiality and intelligence (I call these the 3-I’s). He accuses those of us on the other side (including notably the learned Attorney General, Professor Duke Pollard and myself) who holds the opposite view of article 161(2), of being “hopelessly erroneous” and “moderate to bizarre” in our interpretation. For myself, the matter of constitutional law of the appointment of a GECOM Chairman, condenses, distills and filters down to this: article 161(2) is so drafted and worded because the constitution-makers, contemplates, expects and intends that the appointee as Chairman of the Guyana Elections Commission must be a sitting Judge, former Judge, Magistrate (sitting or former), Lawyer, (I call this, category “J”) or, a person from any other profession – (nuclear scientist to farmer) who possesses, (as the dominant eligibility factor) demonstrated attributes of the 3- I’s (I call this, category “O”).
Both common sense and constitutional logic alike, demands that. I unhesitatingly and without equivocation submit that President Granger is constitutionally sound in his position that a Judge/Magistrate/Lawyer is par excellence a “fit and proper person.” The Lawyer’s question of what amounts to or constitutes “fit and proper”, I answer this way: the constitutional test is: the attributes of a Judge – the 3-I’s. So, it is all about judicial attributes. A very different issue from judicial status. Aubrey Bishop, CJ (now deceased) may have materially anticipated the present imbroglio when in Barnwell (1993) he gave the following limpid and erudite characterization of a Judge viz: “Society attributes honour if not veneration, learning, if not wisdom, together with detachment, probity, prestige, and power to the office of judge… so great are the social expectations and obligation that bear on that responsible position together with the role and functions related to it”
I submit, that transposed to article 161 (as a whole) Bishop, CJ (later Chancellor) might well, with equal facility of erudition and reason, have been characterizing a GECOM Chairman. I submit further, that the context and subject (given the high constitutional role and functions related to that office) vis – a – vis GECOM Chairman, assumes considerable relevance in the interpretation of article 161(2). To make the point, I say that, the appointment is no appointment of a school head-teacher affair, so much is involved; so much is expected.
Editor, most of Mr. Nandlall’s arguments I have dealt with in a previous letter and no useful purpose is served by repeating those contentions here, except that I desire to expound more-fully on the ejusdem generis rule as to its nonapplicability or applicability in Guyana as the matter appears to be the linchpin of Counsel’s arguments (see “You cannot ask the CCJ for an opinion in such circumstances” – KN, January 17, continued as “The AG is right about the President’s constitutional power” (as edited) KN, Friday, January 20, 2017, and an unedited, belated publication, “Jagdeo should submit a fresh list for publication” GC, Monday January 23, 2017).
I begin, with this unequivocal statement: neither case law or statute says that the ejusdem generis rule of interpretation does not apply in Guyana. Had I anticipated such confusion and misunderstanding, about it, I would have dealt more fully with it in my previous letter, supra. I do so now. I submit that Mr. Nandlall has miscomprehended and misunderstood the case law and misinterpreted the Interpretation and General clauses Act, Cap 2:01 when he writes “… It is for the reasons adumbrated above that our court of Appeal has ruled that the ejusden generis rule does not apply in Guyana”.
The Court made no such general ruling as a matter of either principle or interpretation. On the particular facts of the case it was dealing with (ie Badri Prasad), it held that the rule did not apply, in that case. But how does that rule impact on the exercise of the President’s and Mr. Jagdeo’s power under article 161(2)? The contrasting view appears to be the reason for the differing position as to the (non)acceptability of Mr. Jagdeo’s List of nominees.
My answer is twofold. First, I begin by stressing the cognate words “fit and proper” in the formula “any other fit and proper person”. I digress here to state for the layman, that the ejusdem generis rule simply put, means that when general words (such as “any other…”) follows specific words (such as “judge…”) the general words refers to things similar to the specific words. And this is the crux of this matter. Does that cognate expression takes its identity and definition from category “J”? If no, then who (the President or Mr. Jagdeo) decides.
Maxwell E. Edwards
Attorney-at-Law

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