Thoughts on what article 161 of the Constitution means

Jan 30, 2017 Letters

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Dear Editor,
I refer to my letter of Saturday on article 161 of the Constitution dealing with GECOM’s Chairman and the use of the term invented by me; the 3-I’s- the attributes of integrity, impartiality and intelligence. Here the 3-I’s must be the most dominant consideration to which the draftsman has directed attention; for it could not by such wording wholly, or even predominantly, have intended to add, simpliciter (i.e. simply), to the existing “J” category of professionals on a subject or context such as is GECOM Chairmanship, without regards to the questions of fitness and propriety of any nominee for that high constitutional office. By “J” category in my Saturday letter, I mean judge, Magistrate or Lawyer. By O”” category I mean other person than a judge.
A non-legalistic reading of that cognate formula is this: no person/nominee comes within the ambit or purview of “any other” unless, and to the extent only, that he/she is “fit and proper”; fitness and propriety is the cardinal, crucial determinant for eligibility for appointment.  In other words, in this Chairmanship matter (i.e. the 3-I’s) is inextricably intertwined with the matter of status (i.e. profession). The words “fit and proper” is no mere surplusage or tautology.
This brings me to the second part of my twofold answer. I submit that by that formula there is commonality and similarity of the constitutional TEST as to what is fit and proper, for both category “J” and “O”. By some illogicality (matched by their obstinacy). Mr. Jagdeo and Counsel (when their position and arguments are closely examined), takes the untenable and incongruous position that, by law, there is no requirement of similarity of attributes as between category “J” and “O”; for how else, can one rationally explain their obstinate disagreement with the President’s position that Mr. Jagdeo’s nominees be persons with demonstrated, empirically evidenced, attributes of the 3-I’s.
The law is not an ass. The draftsman by “fit and proper” must be presumed to have intended to cut down or limit the generality of the words “any other”, by the attributes of 3-I’s that inheres in category “J”. Sheer commonsense and constitutional logic screams to us that it does. Here, context is everything (and this point cannot be stressed enough). Can any nominee for chairman be anything but possessed of the 3-I’s? And by the wording “not unacceptable to the President” article 161(2)itself has made the President (not the Opposition Leader), the ultimate decider of who, in both fact and law, is fit and proper for appointment as GECOM chairman.
So, this brings me to the Badri Prasad case (law). Does it tend to or compel a different conclusion to ours. Counsel citing and relying on it, argues as regards the meaning of the words “any other fit and proper person” thus: Article 161(2) contemplates different, separate and distinct categories of persons bearing no similarity to each other. …”(emphasis mine). The flaw in this generalization is palpable.
First of all, as I have articulated above such a myopic proposition gives an incomplete and imperfect view of article 161(as a whole) and misconceives the wider purport of those words as I have endeavoured to explain above, as cutting down, as a matter of sheer necessity, constitutional logic and common sense, the prima facie wide ambit of “any other” viz-a-viz that hybrid creature created by the words “any other fit and proper person”. His fatal pitfall is his misplaced obsession with “any other”.
So, now,  I ask Mr. Nandlall; if those nominees in the category “O” are not contemplated by article 161(2) as having the similar attributes of the 3-I’s, (he argues strenuously that our laws has dispensed with the ejusdem generis rule and require a disjunctive interpretation of dissimilarity as between category “J” and “O” nominees) then, what other attributes could the constitution-makers and draftsman of article 161(2) have contemplated, by the wording “fit and proper” in relation to category “O”? Was category “O” nominees permitted in a latent, silent, perhaps inferential way, to be persons of partiality; lack of integrity; illiteracy?
The President is entitled to insist that any and all nominees possess the 3-I’s. The insurmountable hurdle and difficulty Counsel faces in the position he takes that the rule has been outlawed by statute (i.e. section 5(1) of the IGCA Cap. 2:01) and that that statute compels that the words “any other fit and proper person” be interpreted as meaning nominees in category “O” are contemplated as being dissimilar to category “J”, is that there exist (what I call) a unity of dissimilarity as per the cognate limbs “any other”, and “fit and proper” in article 161(2).
By their cognate formulation, if “any other” has an interpretation of dissimilarity; so, too, does “fit and proper”. The ejusdem generis rule applies. Chancellor Crane (who delivered the leading judgment in Badri Prasad) as regards a view, (shared by Mr. Nandlall), of the non-applicability of the ejudem generis rule in Guyana, wrote thus: “judges, surprisingly, have taken this view, I however think that view is wrong …” (see at (1981) 3IWIR page 206-9). Moreover, the preceding section 4(1) (which Counsel has ignored) to which section 5(1) must yield,, says in paraphrase that the definitions in section 5(1) applies “unless there is anything in the subject or context repugnant or inconsistent with such meaning”.
In the context of a GECOM, Chairmanship (the conjoint effect of articles 161 and 177 role, function and electoral powers) the application of the rule is inescapable.
And status of Judge, economist, historian, businessman, academic etc. (profession), and the 3-I’s (attributes) are indivisible hybrid conceptions in the subject matter of the constitutional office of GECOM Chairman
Maxwell E. Edwards
Attorney-at-Law 

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