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The mental gymnastics of the Attorney-General

Mar 04, 2017 Letters

Dear Editor,
I have had an opportunity to consider the response of the Attorney General, Mr. Basil Williams, to my interpretation of article 161(2) of the Constitution which I presented to him during an engagement initiated by the President. That response was fully carried in the press. The response spanned four and a half pages, four of which were dedicated to establish that I was wrong in my submission that the ejusdem generis had no application in the interpretation of Article 161(2) of the Constitution with regard to the appointment of a Chairman for the Elections Commission.
The AG’s explanation of what he perceives to be the meaning of the ejusdem generis rule is correct. The meaning he offers can readily be accessed from any basic text book on statutory interpretation.
It appears from the response of the Attorney General, given the fact that he makes no mention of it, that he did not address his mind to the fact that what was being considered was a provision of the Constitution and that an essential principle of constitutional interpretation which I hope he knows or ought to know, is that the Constitution does not fall to be interpreted as an ordinary statute but rather in a broad, liberal, purposive and generous way.
What then has been the interpretation put to Article 161(2) in the half page of a four and a half page opinion. He says “when looking at the construction of the section, one can reason that the categories are in order of preference.” This is indeed a shocking mystifying construction being put upon Article 161(2). Nothing, absolutely nothing in Article 161(2), establishes any order of preference in relation to the qualifying criteria for eligibility for appointment, attaching to the names of the six persons in the list to be submitted by the Leader of the Opposition to the President.
If it was intended that there should have been such a preference, the draftsman would have made that pellucid and not leave it to Mr. Williams, SC, MP, to give Article 161(2) that meaning. It should not come as a surprise, that none of the commentators on Article 161(2) have ever advocated that the Article created any preference.
Article 161(2) creates three (3) categories of persons who may be considered eligible for appointment as the Chairman of the Election Commission. They are a judge, former judge, or a person qualified to be appointed a judge or, any other fit and proper person.
So, taking the AG’s argument, its logical limits, by arguing for the application of the ejusdem generis rule to the interpretation of Article 161(2), and considering the genus which he contends takes preference in Article 161(2), the question arises as to what kind of person would, therefore, fit the description of “fit and proper person.” The Attorney General does not touch this issue in his attempt at interpretation of Article 161(2), though he does recognize “any other fit and proper person” to be a category of eligible persons. Having without any proper reason or justifiable basis concluded that Article 161(2) created preferred categories of persons who may be offered for consideration for the Chairmanship of GECOM (note Mr. Williams did not apply the ejusdem generis rule to arrive at this conclusion, Indeed, he demonstrated no application of the ejusdem generis rule), he then for his “preferred category” method of interpretation, found that that method puts an obligation on the Leader of the Opposition to include a judge from what he describes as the “priority category.”
This is nothing more than mental gymnastics on the part of the Attorney General. The proviso of Article 161(2) which Mr. Williams, SC, MP refers, is not an aid to the interpretation of the general body of Article 161(2). It is nothing more than a limiting provision on the power of the President which becomes punitive if the Leader of the Opposition fails to provide a list, as provided for, in Article 161(2). Only then the President in that circumstance can appoint a Chairman but in that circumstance, he would be limited to choosing a sitting judge, or former judge or someone qualified to be a judge. It is an opportune moment to point out that there is no failure by the Leader of the Opposition to submit a list, if the President rejects a submitted list. What the proviso targets is the failure of the Leader of the Opposition to submit a list at all.
Mohabir Anil Nandlall

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