The judgment of the chief justice supports that the president acted constitutionally

Nov 05, 2017 Letters

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Dear Editor,
I offer a review of the key findings and reasoning of the Honourable Madame Chief Justice in support of my view that the judgment of the Honourable Madame Chief Justice supports the contention that the President acted constitutionally when he appointed the Honourable Justice James Patterson as Chairman of the Guyana Elections Commission. In this regard, I respectfully submit that an understanding of the judgment of the Honourable Chief Justice would place in context and perspective the decision of the President.
Before I turn to the case proper, a brief note on interpreting judgments of the court is necessary. The decision of a case, known as the judgment, is usually long, containing a lot of comment, explanations and the legal principles on which the decision is made. The legal principles on which the decision is made, in a particular case, is called the ‘ratio decidendi, Latin for the ‘reason for deciding.’ It is the ‘ratio decidendi’ or the ‘reason for deciding’ that becomes binding precedent and which forms part of case law. All other parts of the judgment which do not form part of the reason for deciding is called obiter dicta, Latin for ‘things said by the way.’
Things said by the way are often discussions by the judge of hypothetical situations and or alternative situations, which are usually only of persuasive precedent. It is therefore critical that when reading a judgment one is able to separate the reason for the decision from matters not directly connected thereto. Of course, Judges and lawyers disagree often on reasons for deciding a particular case; since the judge never says what is the reason for deciding any particular case because the reason for deciding a particular case is gleaned from reading the whole case.
Armed with this information, I now turn to the case at hand, Marcel Gaskin and the Attorney General. According to the case report, the applicant (Mr Marcel Gaskin) sought an interpretation of Article 161(2) of the Constitution of the Cooperative Republic of Guyana by way of a declaratory order on four questions (a, b, c, &d). I will deal with them separately so as to provide the key findings under each and later, the reason for deciding. Below are the questions and key findings.
Question a:
Whether the list of persons for appointment as Chairman of the Elections Commission required to be submitted by the Leader of the Opposition under the said Article 161(2) must a judge, a former judge or a person qualified to be a judge?
Answer: The Honourable Madame Chief Justice answered this question in the negative.
Key Findings of the Judge:
(1) Article 162(2) contemplates two categories of persons- a Judicial Category and a non-Judicial category and these two categories are of equal weight. (page 20)
(2)The Judge found that a list submitted by the Leader of the Opposition could comprise “ six judges, six former judges… six fit and proper persons… one judge, five fit and proper persons” or any combinations from these two categories and there is no priority for judges to be firstly considered. (pages 20; 21)
(3) “…Reference to any “any other fit and proper person” in the context of art 161 (2) speaks to the qualities that one would look for in the appointment of someone as a judge but a nominee does not have to have legal qualifications or training.” (page 20)
(4) “It cannot be gainsaid that the said qualities of integrity, honesty and impartialityare what are required in a GECOM Chairman… and the reported statement of he President that he would choose someone who is ‘fit to be a judge’ mirrors my interpretation of who a fit and proper person… should be.”( page 20)

(5) “While it is appreciated that The President will ultimately make the appointment, it must be from a list of six persons that has been submitted to him by the Leader of the Opposition once he finds the list not unacceptable” (page 14).
(6) “ Given that the list must not be unacceptable to the President, it follows that it is he [the President] who will ultimately make the final determination of who is a fit and proper person to be appointed as Chairman of GECOM.” (page 22)
Questions (c) and (d) were combined by the Honourable Madame Chief Justice:
(c) Whether the President is obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as a fit and proper person for appointment? And (d) whether a finding of fact by the President that any one or more persons is not a fit and proper person renders the entire list unacceptable?
Answer: The Honourable Madame Chief Justice answered both questions (c) and (d) in the negative.
Key Findings of the Judge:
(7) “…It is not mandatory that the entire list of names be acceptable.”
(8) “…Once there is a person named who is acceptable then the President has the discretion to choose this person. However, the President can nevertheless exercise his discretion and reject the entire list as being unacceptable…”
Question (b)
(b) Whether the President is required under the Constitution to state reasons for deeming each of the six names on the list submitted to the President as unacceptable?
Answer: The Honourable Madame Chief Justice answered both questions (c) and (d) in the affirmative.
Key Findings of the Judge”:
(8) “There is no requirement under the Constitution for the President to state reasons for deeming each of the six names on the list or the entire list to be unacceptable. Nevertheless, the modern thinking is that reasons for decisions and actions should be given.”( page 30).
(9) “…I hold that reasons for rejection must be given whether as regards the entire list of names that is unacceptable or some of the names on the list that has resulted in the rejection of the list.” (page 30).
(10) “ The submission of the list does not mean that the President is obliged to accept the list or the persons named in it.” (page 30)
(11) “ He [the President] must, however, give reasons for doing so that is known why there was a rejection so that he [the President] could properly move to apply the proviso to article 161(2) which allows for the appointment of persons from the judicial category only.” (page 30).
(12) “…In this case the applicant is not seeking to inquire into the discretion exercised and the judgment arrived at but to have clarified how such discretion or judgment should be exercised given the provisions of article of 161(2).”
(13) “It does appear to me that failure to submit a list as provided for speaks to the provision of an acceptable list as discussed earlier. If by not choosing any of the persons listed, the President thereby finds the list unacceptable, the proviso to Article 161 (2) would apply and the President should go on to appoint a judge or former judge or a person who would qualify for the appointment of a judge in Guyana or the Commonwealth to the post of Chairman of GECOM.” (page 32)
Reason for deciding
I respectfully submit that the Honourable Madame Chief Justice reasoned that the widening of the categories of persons from which to appoint a person as Chairman of the Guyana Elections Commission introduced categories of equal weight and nominees therefrom need only to have the qualities of integrity, honesty, impartiality and independence, which as a matter of substance ought to reside in persons in the judicial category and in persons in the non-judicial category. The determination of who is a fit and proper person, providing reasons for rejecting a list and selection or non selection of a person from a list or the rejection of the entire list is a subjective matter with lies within the jurisdiction of ‘discretion of the President’ which discretion should be exercised fairly and impartially, without prejudice to the President acting independently under the proviso to Art 161(2).
Comments
In light of the findings identified above and what I extracted as the reason for deciding, my respectful submission is that nothing in the judgment of the Honourable Madame Chief Justice when set against the actions of the President amounts to unconstitutionality on the part of the President. However, at the time of this decision, the issue of resorting to the proviso was indeed academic, since then the situation changed as the President went ahead and made a decision in relation to the lists as submitted. In keeping with the judgment, the decision by the President that the three lists,as submitted, were unacceptable led naturally to the triggering of the proviso to Art 161 (2) by the President.
In the context of the finding that the President, should provide reasons, though not a requirement of the Constitution, for rejecting a list or names thereon, it is my respectful submission that providing reasons cannot be elevated as the trigger for the proviso since the President’s decision is not dependent on reasons given nor the acceptance by the Leader of the Opposition of the reasons to be given – that is to say that providing reasons are not more important than finding the list unacceptable which is the trigger and which is supported by the judgment of the Honourable Madame Chief Justice.
This does mean that providing reasons are not important, however they are not fatal. Consequently, the time line for giving reasons has to very flexible and, when given, serves an aid, ex-post facto, to triggering the proviso. At the end of the day it comes back to whether the list is acceptable or unacceptable to the President, even where reasons are expected in accord with the spirit of the constitution. The fact that providing reasons is not a condition precedent to the President’s decision, though important, elevates giving reasons to the category of ex post facto. In the result, I respectfully submit that an absence of reasonsfor rejecting a list because it is deemed to be unacceptable is not equal to unconstitutional actions when the proviso to Art 161(2) is triggered.
I conclude by saying that the judgment of the Honourable Madame Chief Justice supports the contention that the President acted constitutionally in appointing the Honourable James Patterson as Chairman of the Guyana Elections Commission and did not or purport to inhibit the President from resorting to the proviso and appoint a Chairman of the Guyana Elections Commission.
Gary A R Best
Rear Admiral (rtd)
Attorney- at- Law

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