Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision

Jan 29, 2017 News

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It is hard to think of a more flawed interpretation of an expressed constitutional provision than what we are currently witnessing in the feud over the selection of a Chairman of the Guyana Elections Commission (GECOM).
President David Granger offers one interpretation of the Constitution and former President Bharrat Jagdeo treats us to a juvenile understanding of the Supreme law of the land. The controversy that is brewing may not have occurred had Mr. Granger handled the matter judiciously but, be that as it may, the response from the parliamentary opposition is a perilous waltz on slippery ground.
Jagdeo bristled at the rejection of the list he submitted to the President, threatening litigation and declaring that the Caribbean Court of Justice should be the arbiter. The threat to litigate the rejection of the List of nominees for the Chairman of Guyana’s Elections Commissions, is misguided. The selection of the Chairman of the Elections Commission by the President is nonjusticiable.
Nonjusticiable matters are those that the judicial branch cannot impose a remedy on the executive under the separation of powers doctrine. No court could compel the President to accept the list of nominees submitted to him. This is one instance where authority delegated to the executive, is outside the reach of the judiciary.
Even in countries such as the United States, there are categories of cases that are excluded from judicial review. The political question doctrine is a canon of statutory and constitutional interpretation that restrains courts from enquiring into the exercise of authority by the executive. The simple fact is that there are instances where the discretion of the executive is absolute. The selection of the Chairman of the Elections Commission is one such case.
The President is the ultimate arbiter not the court. No judge could overturn his decision or direct his action.
It is clear from the reading of the Constitution that the selection of a Chairman of GECOM is outside the purview of the courts. It is in the realm of the political question doctrine not individual rights. There are overwhelming precedents crystallizing the principle that a court can never be called upon to be the umpire in questions that are merely political in nature.
Political question cases are those that involve issues that are delegated to the executive for resolution. They are also characterized by the absence of manageable standards by which the judicial branch could serve as umpire.
A clear test is whether the judicial branch could provide cognizable and meaningful remedy without usurping authority delegated to another branch of government.
In the case of the selection of the Chairman of GECOM, the Constitution delegated authority to the President with utmost clarity. It is an issue unequivocally delegated to the President for resolution.
Article 161 is clear that the President “shall” appoint the Chairman. As to who the President may appoint and how the appointment is made, Article 161 commits the issue to the President as the ultimate arbiter. Even where it outlines the required qualifications for appointment, it defers to the President, stating that notwithstanding the requirements, the List must not be “unacceptable to the President”.
This means that even a list that satisfies the “fit and proper” requirement could be rejected by the President. Bottom line–the court cannot order the President to accept any list of potential nominees. Surely, this is a case where the principle of judicial deference also applies.
It is also clear from the wording of the Constitution that there is NO manageable standard by which the court could resolve a dispute. Former President Jagdeo and Former Attorney-General Anil Nandlall are glossing over the part of Article 161 which states “not unacceptable to the President”.
This clause introduces a highly subjective element that does two things. First it renders the discretion of the President absolute. Secondly, and perhaps more critically, it gives rise to the absence of manageable standards for judicial intervention. No judge could enter the mind of the President to determine what is or is not acceptable to the President.
Critically, NO judge could impose his or her own standard of acceptability upon the President. This is the essence of what constitutes a nonjusticiable matter –impotence on the part of the court to fashion a remedy.
It is important to note that historically, the Constitution vested the President with sole and unilateral authority to appointment a Chairman of GECOM. This is indicative of the political question doctrine outlined above. Further, when the Constitution was amended, it retained the authority historically vested in the President as the ultimate arbiter with the controlling clause “not unacceptable to the President”. The PPP was in power at the time of the amendment and controlled a majority of seats in Parlaiment. The PPP therefore, opted to retain the broad delegation of powers vested in the President, so it has no moral standing to complain now. Article 161(2) is a creature of the PPP that has come back to haunt. (To be continued)

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