By now, Article 161(2) of the Constitution of Guyana must be one of the most familiar provisions of that document where the populace is concerned. 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.”
I have written repeatedly on the interpretation of this article. It is not my intention to repeat my views on the matter. Needless to say, that they have not changed. 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 canon 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 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 them 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 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 the ‘fit and proper’ person category must be resorted to, 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 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) 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 additional 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 characteristics closely, and I say, without any equivocation, that I know of no person in Guyana who possesses all six of those characteristics. A person is bound to fail in at least one. 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 sets of characteristics. Suffice it to say, 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. The person is “… deemed to have wide electoral knowledge…” by whom? And what is “wide electoral knowledge?” The person must also be “… capable of handling electoral matters because he or she is qualified to exercise unlimited jurisdiction in civil matters.” What type of “electoral matters?” Suppose the person is capable of handling “electoral matters” (whatever that means), but for a reason other than being qualified to exercise unlimited jurisdiction in civil matters, what then? It is also clear that only a lawyer of seven years standing is “qualified to exercise unlimited jurisdiction in civil matters.” Therefore, the President is importing into the ‘fit and proper’ category of persons, legal qualifications, which is clearly the opposite of what the framers of the article intended. Most fundamentally, none of these requirements/characteristics is required by the Constitution. If the framers intended to require persons with electoral experience of some kind, they would have expressly done so in the article. They did not. To attach these requirements, is to pervert the Constitution.
The fourth characteristic listed by the President, is even more problematic. It reads:
“d) That person will not be an activist in any form (gender, racial, religious, etc)”.
My first observation is that the categories of activism which are contained in the brackets are unlimited by the use of the word ‘etc.’ Therefore, a person who is an activist in any conceivable area is automatically disqualified. Accordingly, a religious activist/leader, a gender rights activist/leader, a human rights activist/leader, a champion for democracy and democratic values, an advocate for the rule of law and constitutionalism, a consumer rights activist/civil society advocate and thousands of other categories of persons are automatically disqualified. I must emphasize that the very Constitution itself, in a number of articles beginning from Article 138 to 151, guarantees to every citizen of this country, as a fundamental freedom, the right to hold opinions, express views, agitate, protest for and form associations in relation to advocate for and in advocacy of these very issues. Moreover, the Constitution protects them against any form of discrimination or unequal treatment if they choose to exercise the said same rights and freedoms.
In one swipe, the President has denuded thousands of Guyanese of these constitutional protections and freedoms and disqualifies them from being eligible to hold an important constitutional post in their country. It begs the question, what quality of legal advice is the President receiving and from whom? It is extraordinarily difficult to accept that these constitutionally heretic propositions emanate from a legally trained mind. Even certain judges, who appear to enjoy the confidence of this administration, would be disqualified on the ground that at one time or another, they would have engaged in gender/child rights advocacy of some kind. Imagine the most passionate crusader for free and fair elections, would no longer be eligible to be appointed Chairman of the Gecom, because of his advocacy! Space does not permit me to address the other characteristics outlined by the President. But I believe I have made my point.
It is clear that the President is attempting to re-write Article 161 (2) of the Constitution, by importing into it a plethora of issues, requirements and qualifications which are not in that article and which cannot be implied or insinuated, even if, one is to give that article its most elastic construction. The legal truth is that if the framers wanted those matters to be included they would have expressly done so. The President’s sentiments as expressed in the missive under review, in my respectful opinion, are clearly ultra vires and in violation of the Constitution. In 1996, the entire Parliament was guilty of what the President is now doing. The Parliament had unanimously enacted a law which made ID cards, a mandatory requirement for one to qualify to vote, whereas the Constitution qualifies one to vote if one is eighteen years and registered to vote. Justice Claudette Singh in the elections petition filed by Esther Pereira, had no difficulty in ruling that the requirement of the ID card was ultra vires, unlawful and in violation of the Constitution.
It is quite ironic that the Leader of the Opposition requested of the President clarifications; instead he received a maelstrom.
Mohabir Anil Nandlall, MP