In defence of the President’s reaction to the chief justice’s ruling

Jul 25, 2017 Letters

---

Dear Editor,
Those who resort to, and uses legal dogma to condemn President Granger, must, be guided by elementary principles of fairness and intellectual decency, equally recognize and accept that legal dogma also exist and applies, and can and should be resorted to, to exonerate him from any wrongdoing, (perceived or actual) and provide him respite from any, constitutional opprobrium.
And legal dogma requires us to say that the mere expression of a person’s intention, however (mis)interpreted has never constituted, any public wrong. Accordingly, until and unless President Granger does, or attempts to do something, which is in defiance of, or amounts to some disobedience of some clear, compliable court order of the Chief Justice(ag), he has committed no constitutional wrong.
It is against this backdrop of considerations of elementary fairness and legal dogma, that I proceed to examine the soundness and veracity of critical views contained in letters to the press over an extempore comment made by the President in answer to reporter’s question on the occasion of his swearing in on Wednesday july 19 of five judges (four High Court, one Court of Appeal) to serve in the Judiciary. And one must stop and think: is it not more probable that on that occasion the very President would not exhibit any anti-Judicial disposition.
First, Anil Nandlall’s. His charge is one of infringement of separation of powers doctrine by the President. (KN 2017 – 07 – 20 “President Granger has infringed on the separation of powers”). I begin my rejection of Nandlall’s arguments with this: detached reflection, legal erudition and impeccability in expression cannot be expected in an extempore comment made in the presence and moment of reporters’ microphones. Be that as it may, what matters is that the President never did (and could not possibly have done at that swearing in event); nor purported to do, anything that under the Constitution it is the Judiciary’s function to do Infringement is like a constitutional crime; there must be an act/omission.
By his mere comments, on any view, was the President interpreting, or purporting to interpret article 161? Certainly not. If this matter was, ex hypothesis, litigated in court, how would Nandlall show that an infringement has happened? He could not. Nandlall writes as if constitutional law places some gagging writ on the Executive commenting (even critically) on the Judiciary. It does not.
Nowadays, Judges do not fear criticisms (unlike in the 1760’s) nor, should they resent it. A greater public interest is at stake. It is freedom of speech itself. Does our constitutional law deny this freedom to the President? Not at all. But, with an accustomed degree of political rhetoric he inveighs against the President’s extempore comments Granger’s “utterances”.
Second, there is Chery Devonish’s. She pens an abstract disquisition of general principles of law about the Judiciary’s role in the interpretation of the Constitution (KN 2017 – 07 -22 under caption “the Judiciary is the authoritative interpreter of the Constitution”). She is obviously of some learning; but I question the relevance of her disquisition to the facts of this matter. She has confused interpretation, with EXERCISE OF POWERS to appoint (President’s; not the Judiciary’s role). Close analysis shows it is exercise that the President had in mind.
No amount of linguistic artifice can convert that inevitability somehow into interpretation. And when that exercise is inevitably done, it must, and can only be done, by the President. Could any interpretation change or even be concerned to change, that cold reality. No. The hard fact of the matter is that the exercise of the President’s power in art 161(2) does not to any extent whatsoever depend on him (or his principle legal adviser the AG) having to decipher, or understand some difficult ambiguous esotenic wording.
Third, Lincon Lewis’, his too, like Devonish’s, is a disquisition of abstract trite general mantra, albiet of a different theme. (KN 2017 – 07 – 22 under caption “the govt. has the premier responsibility to respect court rulings) what I have argued above in relation to Devonish’s letter applies equally to Lewis’. Those three letters have this in common: they are based on a false premise of a monstrous fallacy that the President has in point of fact done some act, or omission that the CJ (ag.) has ruled cannot be done, or should be done, as the case may be. No such thing has happened. And here is how the fallacy happens. Here, are the newspaper headlines: GC “AG: CJ ruling vindicates President decision; KN “Court rules… GECOM Chairman need not be a former judge”, SN “CJ rules law doesn’t favour judges for Gecom Chair – says President must give reasons for any rejection”.
So, for argument sake we treat these as fairly representing the ruling. Is the Judge by the words “need not be a former judge “or, “law doesn’t favour judges”, to be understood as unequivocally ordering that the President cannot, and is not, permitted by article 161(2) to choose a former judge? Plainly, not at all.
The order (when one is entered) would be amenable to an understanding and capable of being understood, as still permitting the President, if he so chooses, to appoint a former judge, assuming the President finds that nominee “not unacceptable”. In these events, has the President done anything it was the Judge’s role to do? No. Would he have disrespected or disobeyed any judge’s order? No. Would he have interpreted (rather than exercised, as he must his powers) the Constitution? No.
There is a view to which I subscribe, that courts should show self-restraint when invited by litigants to pronounce on and render determinations that is by the very nature of the matter, legally impossible to supervise and enforce; and is therefore illusory. Interpretation is not enhanced by illusion. Is it legally possible (even forensically possible) for a court to supervise the nonjusticiable power vested in the President by article 111(1) by the words “his own deliberate judgment”, used when making his article 161(2) appointment?
It appears to me to be a legal impossibility. And it is instructive that in the exercise of that power so far, the President has rejected two lists; but the CJ(ag) ruling does not involve any determination that the President in doing that misdirected himself, or exercised his power wrongly? So, it must follow that the President’s interpretation of article 161(2) on which he based his exercise of power in rejecting those Lists/nominees was right and constitutional.
Upon a further sober, dispassionate consideration of this matter I have come to the conclusion that in all the circumstances of this matter, there can be no greater legalistic nonsense written than that the President’s comment is somehow, nuanced disregard for the rule of law; disrespectful, or in purported usurpation of the Judiciary’s function.
Maxwell Edwards
Attorney – at – Law
(Former Senior Magistrate)

---

---