President Granger’s six characteristics are impossible to comprehend

Mar 25, 2017 Letters

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Dear Editor,
By now, Article 161(2) of the Constitution of Guyana must be one of the most familiar provisions of that document to the populace. Nevertheless, in light of recent events, I find myself compelled to recite it, again, for public consumption.
The relevant portion provides: ”…the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly.”
It is instructive to note that Justice Duke Pollard, a retired Judge of the Caribbean Court of Justice (CCJ), whose interpretation of this Article, initially, differed from mine because he utilized the ejusdem generis cannon of construction to conclude that the different category of persons contemplated by the Article must flow from the same genus, in his latest letter in the press, conceded that Section 5 of the Interpretation and General Clauses Act, abolished the ejusdem generis rule in Guyana. Justice Pollard credited yours truly for bringing this issue to the nation’s attention. I assume that Justice Pollard and I are now at ad idem on the interpretation of this Article. I take comfort from the fact that his was the only opinion of substance which departed from mine on the interpretation of Article 161(2) of the Constitution of Guyana.
It is now public knowledge that President David Granger has furnished the Leader of the Opposition with his opinion ”…of the qualities that the candidate to be Chairman of the Guyana Elections Commission should possess.” In a part of the missive captioned: ”Qualities of the Chairman of the Guyana Election Commission”, the President makes three statements, which are numbered sequentially and expressed in such curious language that I can do no better than set it out verbatim:
“(1)  The candidate should be a person who is qualified to be a Judge of the High Court under Article 129 of the Constitution and under Section 5 of the High Court Act, Cap. 3:02;
(2)  The person should have been an Attorney-at-Law for a minimum of 7 years according to Section 5 of the High Court Act, Cap. 3:02;
(3)  In the absence of 1 and 2 above ‘any other fit and proper person’ should be appointed according to Article 161 (2) of the Constitution.”
Section 5 of the High Court Act provides, that for a person to be qualified to be appointed as a Judge, under Article 129 of the Constitution, that person must be an Attorney-at-Law of at least seven (7) years standing. Two quick observations must be made in respect of (1, 2 & 3) above. Firstly, one would recognize that its flawed language aside, (2) above is otiose, redundant and unnecessary.
Secondly, there is absolutely nothing in Article 161 (2) of the Constitution, which lends to the view, either expressly or by implication, that only in the absence of a Judge, or a former Judge or a person qualified to be such a Judge, then one must resort to the ‘fit and proper’ person category, as is insinuated in (3) above. The continued conferment of some measure of precedence and priority upon one category of persons over the other is not provided for, contemplated or countenance by Article 161 (2) and it is simply ultra vires to do so. The framers intended for the different categories of persons to be treated equally and they are equally qualified to be appointed Chairman. No amount of political machinations will pollute the clear language of the Constitution.
The President’s missive continues: “The categories of persons specified above are necessary because such persons should have the following characteristics”.  Six (6) different sets of characteristics are next set out in the document. But before I venture there, I must point out that even the favoured category of the President, that is, a Judge, a former Judge or a person qualified to be a Judge, does not appear to meet the President’s requirements, although, Article 161 (2) clearly qualifies them without any additional requirements.
Indeed, the word ”other” which follows in Article 161(2) them and which precedes the words ”fit and proper person”, clearly means that these persons are already deemed fit and proper persons by the Article. Yet, the President is imposing additionally requirements upon them before, in his view, they are qualified for appointment. It is without doubt that in relation to these persons, the characteristics outlined by the President are in violation of and ultra vires of the Constitution.
The matter is further compounded by the fact that the President’s letter implies that before a person qualifies he must possess All SIX of the characteristics outlined therein. I have examined these six (6) characteristics closely, and I say, without any equivocation, that I know of no person in Guyana who possesses all six (6) of those characteristics. A person is bound to fail in at least one (1). Indeed, I doubt that the President himself can find a person who would fit the bill.
Space will not permit me to examine all six (6) sets of characteristics so I will have to follow it up with another letter. Suffice it to say for now that some are even impossible to comprehend while others are in conflict with other provisions of the Constitution. For example, let us take the first one:
“(a) That person is deemed to have wide electoral knowledge, capable of handling electoral matters because he or she is qualified to excise unlimited jurisdiction in civil matters;”
Apart from the dubious language in which this statement is expressed, it is difficult to comprehend what manner of hybrid-being is contemplated therein.
Anil Nandlall

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