The CJ expressed an opinion on an issue not before the court

Dear Editor,

By now you ought to be aware of the Chief Justice’s ruling on the interpretation of Article 161(2) of the Constitution in respect of the appointment of a Chairperson for Gecom.

Almost every argument AG Basil Williams has articulated publicly over the past several months on this issue and which was made part of his submissions to the court was roundly and comprehensively rejected.

On the other hand, every argument which we have advanced publicly over the past months and every submission we presented to the court have been upheld.

In my considered and respectful view, an otherwise brilliant and juridically sound ruling is marred by a singular error. The Learned Chief Justice appeared to have ventured beyond the purview of her remit and expressed an opinion on an issue that was not before the court for its interpretation and by extension, its adjudication, ie, the proviso to Article 161(2) of the Constitution. The Learned Chief Justice is reported to have said, as part of her ruling, that if the President finds all 6 names unacceptable, the proviso becomes applicable, meaning, that he can appoint a person of his own choosing.

More fundamentally, as this issue was not before the court and was not part of the questions posed by the applicant, Marcel Gaskin, for the court to answer; and neither I, as the lead attorney-at-law for the Leader of the Opposition, nor any of the counsel appearing for the other parties to the proceedings made any submissions on this issue or was invited to do so by the court, all the parties expressed surprise at this particular pronouncement by the Learned Chief Justice.

In my respectful and considered view, that proviso can only be activated when, through the default of the Leader of the Opposition, no list is submitted to the President. In such a case, and by virtue of the proviso, the President is authorized to select a person of his own choosing. This is so because the Constitution would not allow a default by one person to cause such a crisis where no one can be appointed to chair Gecom. The Constitution, like any such fundamental document, is replete with such crises ‒ avoidance mechanisms.

Not having initiated the proceedings, I can only surmise that the applicant did not make the proviso part of the proceedings, in recognition of the fact that the Leader of the Opposition had already submitted a list of names to the President, which the President had rejected and had invited another six names at the time of the filing of the application, thereby rendering the application of the proviso inoperable in the unfolding factual matrix.

In the circumstances, therefore, the Learned Judge’s opinion on the proviso is merely obiter dicta (said by the way) and does not form part of the ratio decidendi (the binding part) of her judgement.

I am hoping that when the written ruling is made available it brings greater clarity to the matter.

Yours faithfully,

Mohabir Anil Nandlall, MP

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