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The President did not conform to the Chief Justice’s ruling

Oct 26, 2017 Letters

Dear Editor,
As expected the highly controversial appointment of Justice Patterson as the GEOCOM’s Chairman has been delivered into the realm of our legal system to once again rule on a matter which had already been fairly and justly pronounced upon by the learned Chief Justice (Ag) Roxanne George-Wiltshire with regards to the interpretation of Article 161(2) of the Constitution. If the President had acted in accordance with this ruling, then the necessity for this second court ruling would not have arisen.
This time, the Chief Justice will be asked to rescind the appointment of the Chairman on grounds of it being unconstitutional. The injunction is also seeking to direct the President to choose a Chairman from the eighteen names submitted to him. I have already dealt with the literal interpretation of Article 161(2) which identified four categories of nominees: a currently sitting judge, a former judge, a person eligible to be a judge and any other fit and proper person.
This Article further states, that a list of six names must be submitted to the President by the Leader of the Opposition, and he, the President must choose one as the Chairman who is acceptable to him. If the Leader of the Opposition fails to submit such a list then the President can unilaterally appoint the Chairman. Even if we take the textualist and strict construction approach, the originalist approach or the contextualist approach and scrutinise the intent of the framers, it will be concluded that the Chief Justice interpretation of this Article is legally correct.
However, what is important to note is that the Chief Justice accepted this interpretation but went further and submitted, obiter dicta, that even though the President is not obligated to give reasons, he should have given reasons for the rejection of the three (3) lists comprising 18 names. This is where the Chief Justice’s ingenuity is at its best. In the case of Unity Versus Dow, it was remarked that the courts ‘must breathe life into the Constitution to assure its healthy growth of the State through it’. It is further stated that, ‘it is the primary duty of judges to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever developing society which is part of the wider society governed by acceptable standards of human dignity’.
If Article 161(2) is allowed to remain static, then it will never be able to grow and ‘meet the just demands and aspirations’ of the Guyanese people. However, we have a situation where instead of progressing Article 161(2) is deliberately placed in a retrogressive mode. This Article must be made to exist in harmony with Article 9 which says that sovereignty belongs to the people and Article 11 which made it a legal obligation to adhere to the consultative and participative process. The consultative process in Article 161 cannot be dispensed with.
Therefore, if the President had given reasons for his rejection then this would have allowed this democratic process to grow and develop. This would have made the consultative and participative process easier for both the Leader of the Opposition and the Leader of the Opposition and would have given life to Article 161. By not permitting this to happen the President did not ‘avert’ a constitutional crisis’ but actually courted one since what he had done was not only unconstitutional but a retrogression of the democratic process outlined in the constitution itself and incorporated in Article 161.
The Preamble and the national objectives and directions of our nation as enshrined in our constitution were literally thrown aside. In conclusion, when the Constitution is interpreted as whole the great wisdom in the Chief Justice’s ruling will become more compelling and will afford us another reason to contemplate and conclude that the President has erred.
Haseef Yusuf
RDC Councillor –Region 6

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