Former AG Misapplies Doctrine of Check on Abuse of Discretion

Jan 31, 2017 News

By Vivian Williams

(Continued from Sunday)

Ignoring the non-justiciable nature of the controversy, former President Bharrat Jagdeo declared that the matter should be decided by the Caribbean Court of Justice. The assertion reflects a more juvenile than profound understanding of Guyana’s Constitutional jurisprudence from a man who has been the country’s chief constitutional officer for more than a decade.
This is perhaps an indication of how lightly the constitution has been taken. It is rooted in an unusual misapplication of legal principles by former Attorney General Anil Nandlall, who has emerged as the PPP’s chief legal adviser.
Nandlall presents the following flawed arguments in letters to Kaieteur News and Stabroek News, titled ‘The Powers of The President Under Article 161’ and ‘The Constitution Lists two Categories of Persons Eligible to become GECOM Chairman’. The flawed arguments are highlighted in bold type.
Judicial Intervention is necessary because President David Granger’s rejection of the list submitted to him, is based on an erroneous interpretation of the Constitution – his apparent failure to consider the “fit and proper” qualification stated in article 161: The President’s interpretation of “fit and proper” does not turn a nonjusticiable matter justiciable. The former AG is overlooking the fact that even a list of fit and proper nominees could be rejected by the President. Though the “fit and proper” requirement is an objective test, its objectivity is subordinate to the subjective requirement that the list must not be “unacceptable to the President”.
By rejecting the list, the President has asserted that it is unacceptable to him. The reason for its unacceptability is immaterial since it is not a controversy for which there is a judicial remedy.
It is only in the event that no list is submitted by the Leader of the Opposition that the President has a power in Article 161(2) to make a unilateral appointment: This is another argument that is without merit. The Constitution expressly provides for the President to appoint a Chairman of GECOM if the list submitted to him does NOT satisfy the requirements of 161(2).
The most critical requirement is that the List must not be unacceptable to the President. Therefore, if the List is unacceptable to the President it does NOT satisfy the 161(2) requirement, triggering the President’s discretion to unilaterally appoint a Chairman. You might have heard talks that the Constitution provides that if the List of nominees is rejected a new List may be requested by the President. There is NO such provision in the Constitution.
What the Constitution states is that if the Minority Leader fails to provide a list as provided for, the President shall appoint a Chairman of GECOM. The word ‘shall’ should not be lost in translation. Further, failure to present a list as provided for should not be interpreted as NOT providing any list at all.
While the Constitution confers a discretionary power on the President to accept or reject any list, no discretionary power, irrespective of how untrammelled it may appear to be ex-facie, is absolute.
While the legal principle propounded here is profound, its application is misplaced. The curtailment of the use and abuse of executive discretion is reserved for cases of vested individual rights. The selection of the Chairman of GECOM is not a matter of vested rights and as such, this legal doctrine does not apply.
All of the cases cited by Nandlall to support his argument involve vested legal rights.
So despite Mr. Jagdeo’s huff and puff, when it comes to the appointment of a GECOM Chairman by the President, the former President and AG are dancing on black ice. They are threading on slippery surface and don’t even know it. If they are NOT careful they could soon lose their balance but then again,
Mr. Granger has lobbed the ball back in their hands. Could someone say who is calling play for the APNU/AFC government?