Suggestions that the proviso to article 161(2) is only triggered when a list is misleading

Oct 29, 2017 Letters

Dear Editor,
Now that the President has appointed a Chairman of the Elections Commission and despite the partisan and emotional outbursts, agreements and disagreements, the only question that falls to be considered is: Did the President act in accordance with the proviso to Article 161(2) of the Constitution of Guyana? The short answer is yes for the following reasons.
The proviso to Article 161 (2) of the Constitution of Guyana states “Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters…” to be the Chairman. In order to answer whether the President has acted in accordance with the proviso to Article 161 (2) of the Constitution of Guyana, we need to determine what is meant by the phrase “…if the Leader of the Opposition fails to submit a list as provided for…” and more particularly the phrase “…a list as provided for…”since a list was provided. However, was that list “…a list as provided for…” under Article 161(2).
The phrase”…a list as provided for…”under Art 161(2) of the Constitution of Guyanais explained by the substantive provision of Article 161(2). The substantive provision of Article 161(2) provides for two categories of persons that can be appointed: (1) judges of various jurisdictions and (2) persons who are ‘fit and proper’”…to be appointed from a list of six persons not unacceptable to the President…”Therefore the phrase “…a list as provided for…”means a list of six persons not unacceptable to the President and not the absence of a list being presented to the President. It is also important to note, therefore, that there is no such category as ‘a list’ not being submitted as suggested by some commentators. It is respectfully submitted that it is the failure of the Leader of the Opposition to submit a list not unacceptable to the President that triggered the operation of the proviso to Art 161(2).
In terms of the qualities of the Chairman, we do have the benefit of statutory interpretation, which guides us to understand that wide ‘words of the same kind’ in the text following ‘more limited words’ are taken to be restricted by implication to matters of the same genus. In Art 161(2) the word ‘Judge’ created its own genus and the words ‘any other fit and proper person’ belong to that genus. It is therefore submitted that the phrase”…a list as provided for…” according to Article 161 (2),also means a list of six persons who possess judge like qualities, who may be in the category of judge as per Article 161(2) and/or the category of a fit and proper person. These judge like qualities, though universal, can be found at Art 122 of the Constitution of Guyana which translates into acting independently of the control and direction of any other person or authority; acting free and independent from political executive and other forms of direction and control; and exercising impartiality and fairness. I submit that these judge like qualities are the exact requirements, to say the least, of the category ‘any other fit and proper person.’
The confusion of many commentators on this issue may well be that they have ascribed the term ‘any other fit and proper person’ to the character of the persons on the lists and not to category of persons giving rise to emotional responses.
Further, it is the President who determines in his own deliberate judgment if the list is acceptable or unacceptable, once submitted. That is a subjective matter and the issue of it being non-justiciable may well arise since Article 111 (1) compels the President to act in his own deliberate judgment in the exercise of his functions except where he is required to act on advice of any person or authority, which is not the case in relation to appointing a Chairman of the Elections Commission.
Applying the law to the facts, in this case, shows that the Leader of the Opposition submitted a list that was deemed unacceptable by the President in accordance with the Constitution of Guyana, meaning that the Leader of the Opposition failed to “…submit a list as was provided for…”under Article 161 (2), which in turn triggered the President’s decision to apply the proviso to Article 161(2) of the Constitution of Guyana and appoint a person within the judge category. Applying the proviso to Art 161(2) of the Guyana Constitution also extinguishes the use of ‘any other fit and proper person’ category from consideration and directs the President to appoint from the category of judge. This decision, in no way, casts any aspersions against the names submitted. This decision is about not using the‘any other fit and proper person’ category.
It is important to recognize that Article 161(2) creates a bridge between the Judiciary and the Executive as it relates to the Elections Commission and its independence of the Executive Branch. Even though appointed by the Executive, ‘any other fit and proper person’ or a person within the category of judge may well occupy that bridge. Most importantly, however, is the fact that in cases of a resort to the proviso, as in this case, Article 161 (2) of the Guyana Constitution provides for the Executive Branch to appoint a person from the Judicial Branch or a person who had served in the Judicial Branch, no doubt, with intention of capturing the qualities of independence and impartiality that reside in judge like persons and persons who are fit and proper.
In this context, terms such as ‘unilateral appointment’ and the view that the proviso can only be triggered if ‘no list’ is submitted are simply misleading. It is of no moment what type of extra constitutional agreement or agreements, the President and the Leader of the Opposition made, since we are guided by findings of the Esther Pereira case which stated, among others, that Parliamentarians cannot come together and break the law. Applying that same reasoning to this matter translates into politicians cannot come together and make agreements outside the four corners of the Constitution of Guyana no matter how noble their intentions. Harsh as it may seem, the Constitution must stand and be tested if necessary.
Gary A R Best
Rear Admiral (rtd)
Attorney-at-Law

1 thoughts on “Suggestions that the proviso to article 161(2) is only triggered when a list is misleading”

Kassem_B October 29, 2017 at 8:21 am

‘ Did the President act in accordance with the proviso to Article 161(2) of the Constitution of Guyana? The short answer is yes….’
And if the Courts find it No
Can you please use this same media and promptness to tell us what you intend to do as:
1.Attorney -at-law?
2.Adviser for the Gov’t
3. A State Pension receiver?