First we had the unreasonable defence by those supportive of President Granger’s strange interpretation of Article 161 (2). That has now shifted to the interpretation of the ruling by the Chief Justice, confusing what ought to be a clear question of the statutory interpretation of the words “from a list of six persons not unacceptable to the President”. Since the phrase relates to the noun “persons” and not the noun “list”, it must be the persons on the list who must be “not unacceptable” to the president and not the list per se. If any person on the list is found by the President to be “unacceptable” (a positive finding), then that person may be the subject of substitution by the Opposition Leader until the list contains six persons who are “not unacceptable” to the President.
Some confusion seems to arise from the double negative – not unacceptable – and whether this requires that the persons on the list be acceptable. I submit that if the drafters intended the names to be acceptable they would have simply written that into the Constitution. The choice of language means that unless the President makes a positive finding of unacceptability of a person, then such a person cannot be substituted.
To state the obvious, if a person is not positively found to be unacceptable, then he is “not unacceptable” and there can be no rejection and substitution of his name. Similarly, if there is no attempt at a finding because the President entertained some strange interpretation of the constitutional provision and an exaggerated notion of his powers, then he has made no finding and there can be no rejection and substitution.
If on the other hand, the word “acceptable” was substituted for the words “not unacceptable”, then the President would be required to make a positive finding of acceptability. If the President cannot make a positive finding of acceptability, then a substitution would be necessary since this would mean that the person is not acceptable. In such a case, once his finding of non-acceptability is founded on reasonable grounds, it cannot be assailed since the court cannot substitute its own finding for that of the President. But Article 161 (2) uses the words “not unacceptable” not the word “acceptable”.
The use of the words “not unacceptable” means that the President cannot reject as unacceptable a person who may be acceptable. To make a finding of unacceptability, the President must make a finding that no reasonable person could have found that person to be “not acceptable” ‒ in other words, a finding that the person or persons is plainly unacceptable (Wednesbury test of unreasonableness).
The essential but simple difference or distinction between use of the words “not unacceptable” and the use of the word “acceptable” in Article 161 (2) is that, in the case of the former, there is no requirement for a positive finding of acceptability while in the case of the latter, a positive finding of acceptability is required. The former, being based on a reasonable possibility of acceptability does not attract the Wednesbury test of unreasonableness; while the latter, being based on no reasonable possibility of acceptability, does attract the Wednesbury test of unreasonableness ‒ mainly unacceptable.
If one applies this logic to two rejected lists submitted by the Leader of the Opposition, then the President must have made a positive finding that every one of the twelve names submitted on list one (including myself) and list two to be unacceptable. This we know he has not done, a violation of the Constitution he has sworn to uphold.
Yet, even some of the not-so-extreme supporters of the President have sought to defend the President’s unreasonable failure to carry out his constitutional duty to name a Chairman on the grounds that he has some kind of discretion in the matter. Even if these persons are unfamiliar with the history and background of the Carter-Price consensus model for the appointment of Chairman of Gecom, they are dead wrong in attributing to him such discretionary power. It is a legal fallacy to confuse a finding of fact with the exercise of a statutory discretion. Under Article 161 (2), the President is required (indeed mandated) to make a factual determination as to whether those persons listed are “not unacceptable to him” in contradistinction to whether they are “unacceptable” persons.
Once the Opposition Leader has not failed (defaulted) to submit a list of six persons who, in his opinion, are fit and proper persons, the President is precluded from appointing a Chairman of the Elections Commission under the proviso to Article 161 (2) from the judicial categories. President Granger has no excuse for further delays and needs to demonstrate an embrace of democratic governance by ensuring that all the constitutional offices are filled. This is where we now stand: no Local Government Commission, no Public Service Commission, no Police Service Commission, no Chairman of the Elections Commission, no Integrity Commission and no Ethnic Relations Commission.
For reasons known only to him, the President has improperly and unconstitutionally delayed the appointment of a Gecom chairman. The delay spawns all sorts of suspicions about motives and intent about the 2020 elections. Meanwhile, six Gecom commissioners are paid lots of money monthly for doing nothing while the procedures and processes for local government and general elections are suspended.
Any single one of these issues would cause a committed democrat extreme concern. That they are actually caused by President Granger raises serious questions about his democratic credentials and the steps he is prepared to take to prevent a return to the days of dictatorship and electoral fraud.