Posts made in January 2017

Fit and Proper: An Unnecessary Fight

President David Granger

President David Granger Rejected a List of Nominees for Chairman of GECOM

By: Vivian M. Williams, Esq., LL.M

When a moment in time presents an opportunity for a historian to leave foot prints in the sand, you expect him to seize the moment. The rejection of the list of nominees for Chairman of Guyana’s Elections Commission (GECOM), presented such an opportunity to President David Granger and he demurred. Mr. Granger traded a legacy-making moment for lasting controversy. It boils down to three simple words “fit and proper” and the clause “not unacceptable to the President“, contained in Article 161 of Guyan’s Constitution.

Vivian M Williams outside a New York Courthouse

In rejecting what is being referred to as former President Jagdeo’s obnoxious list of nominees, Mr. Granger could have simply outlined his objections in terms of the acceptability of the list to him. In a previous article, Dancing on Black Ice, I explained that the acceptability clause is a subjective veto power vested in the President. This is the apex of his authority. Mr. Granger could have pellucidly establish rational principles in a subjective sphere. Indeed, it is the first time that an entire list was rejected.

The President has the authority to reject the List and he acted within his authority in doing so. However, all of the objections raised, such as qualification, experience, partiality and partisan posturing, are grounds for rejection that fall within the subjective realm of acceptability to the President. So the President could assert that he finds the List unacceptable because of any of the reasons given. That is NOT the route the President took. Instead, he asserts that the nominees are not fit and proper and attempted to define fit and proper.

Defining fit and proper could be put to an objective test that is murky and contentious. Therefore, it presents what is known in law as a hard question. Mr. Granger, the feisty General he is,  stepped down from the apex of his authority into the murky swamp of political controversy to fight an unnecessary battle with his political foe. Controversy flared because the administration is ignoring a basic principle of law and life -if a dispute could be resolved by answering an easy question, resolve the dispute and leave the hard questions for another day when it is necessary.

Because of political sensitivity, the appointment of a Chairman of GECOM is not merely a legal matter. It is a matter for which prosecution in the court of public opinion is more important than prosecution in a court of law. Former President Jagdeo knows this. He is using the brouhaha to reinforce the anchors of partisanship that have defined the nation’s politics for all its life.

Mr. Jagdeo’s party left as a footnote in history, the narrative that Mr. Granger’s party has never won a free and fair election. Now he is using a fumble by Mr. Granger to amplify that narrative and set up a future play.

Interpreting “Fit and Proper”

The proposition that the “fit and proper” list criteria requires nominees with judicial experience, turn on the application of an obscure legal principle known as ejusdem generis. In some and substance, the President argues that references to judges that come before and after the fit and proper requirement, define that criteria. This reliance on the ejusdem generis principle is misplaced.

Ejusdem generis is a cannon of legal construction that states, where general words follow  the enumeration of particular classes of persons or things, general words will be construed as applicable only to persons or things of same general nature or class as those enumerated.

Legal analysis that look merely to the definition of a legal cannon for its applicability, is elementary. Proper legal analysis requires an assessment of the requirements that trigger the application of a legal principle. Here are the five conditions that must exist concurrently for ejusdem to be triggered:

  • (i) an enumeration of specific words;
  • (ii) the subjects of the enumeration constitute a class or category;
  • (iii) the class or category is not exhausted by the enumeration;
  • (iv) the general term follows the enumeration; and
  • (v) there is no indication of a different legislative intent.

The most significant of the five ingredients of ejusdem is the non existence of a contrary legislative intent. That requirement along with the ingredient of a non-exhaustive  class or category are missing from Article 161(2) of the Guyana Constitution. The class enumerated is in fact exhausted. Take a close look at the law and you would see that where it talks about judges, the class of eligible people is finite.  The ejusdem generis principle is only applied where there is an incomplete enumeration so that the general words that follow is part of a continuum. That is not the case in Article 161.

The law is well settled in various jurisdictions that the use of words such as “or” and “other” reflect an intention to enlarge the category of persons or things to choose from, not confine it. The combination of the words “or” and “any other” in Article 161(2) is a manifest intent to enlarge the class of persons to choose from NOT restrict it.

Fit and proper is always used in the context of the role you are being considered for. In this case, that role is Chairman of the Elections Commission. If the drafters of the Constitution wanted to enumerate  those qualities, they would have done so, not through deductive reasoning. The argument you are hearing is an attempt to use deductive logic to enumerate qualities the framers of the Constitution did not attempt to enumerate.

Just think about it for a while. The skill sets required for the task of Chairman of GECOM may evolve with time and society. The enumeration of such skill sets in a finite manner may be counter productive for future generations. This must be one of the reasons why the drafters of the Constitution did no such thing. It should be clear that the President might have prudently and rightly rejected the List of nominees. However, the issue is not the “what” it is the “how”.

Fit and Proper has Historical Context

Why would a historian interpret a constitutional provision, rich in history, by ignoring its historical origin and moorings? The intent and spirit of the “fit and proper” requirement are embodied in its history not a fuzzy linguistic tool.

Prior to 1991 the President unilaterally appointed a Chairman of GECOM but was constrained to appoint a jurist or someone qualified to serve as a jurist.  This arrangement was considered ineffective and controversial and was suspended in 1991 to allow for a list of  fit and proper nominees submitted by the Minority Leader. Legislative intent for the 1995 amendment is rich and plenty.

The “fit and proper” list criteria was crafted as a curative measure for a provision that was deemed ineffective. It is a new specie not a clone of what came before it. For three decades after its adoption, the List criteria was interpreted and applied as an enlargement of the class of persons to choose from. Now, here comes an interpreter three decades later, suggesting that those who were in the thick of things, with hammer and chisel in hand, carving  this piece of law, really didn’t know what they intended.  To rely on ejusdem generis now is to reach back in time and attach a provision of the Constitution to a past it broke from.

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Dancing on Black Ice Part II: The Reply to Nandlall on the GECOM Brouhaha

Grown accustomed to a nuanced application of legal principles from Guyana’s former Attorney General, Anil Nandlall, I was disappointed by his response to my article Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision. Though his article, The President is Not Above the Law was published as a response, the former AG resorts to sweeping recital of general legal principles without relating those principles to the specific facts and the legal conclusions that are in contention. Even the caption of his response is deceptive. Any perceptive layman knows that the President is NOT above the law when he is acting pursuant to powers granted by the supreme law of the land. Nevertheless, lets examine Mr. Nandlall’s arguments, highlighted below.

Make NO mistake: Courts are not Imbued with Unlimited Jurisdiction

Vivian M Williams outside a New York Courthouse

Below is one of the arguments made by Nandlall. It sounds good at a glance but let’s take a look at it.

The non-justiciable argument is a relic of a bygone era and owes its genesis to certain aspects of the Royal Prerogative which were beyond the reach of the judiciary and not amenable to its review. This concept has no place in a legal system where the Constitution is supreme and where the judiciary is its guardian and imbued with an unlimited jurisdiction not only to ensure that it remains supreme but to strike down any law or actions which not only violate or are inconsistent with it but also which seek to question or undermine its supremacy:- Anil Nandlall

Make no mistake, the judiciary is NOT imbued with unlimited jurisdiction in a constitutional democracy. Jurisdiction is legal jargon for authority. If the judiciary is imbued with unlimited authority then there would be judicial tyranny. Judicial tyranny is certainly not a cure for the ills of executive tyranny. In a constitutional democracy, courts must understand the limit of their authority and not overstep it. The political question doctrine and the principle of nonjusticiability are bridles placed on the judiciary that hold it in check so that the Constitution, NOT the judiciary, is supreme.

A constitutional democracy is built on the principle of separation of powers where power is distributed to the Executive, Legislative and Judicial branches, each exerting a check on the other. Because the judiciary can exercise no more authority than what is granted to it, in some instances, judicial inquiry is restricted to whether the court has or doesn’t have the authority to decide the substantive issue of a case. That is what is meant by nonjusticiability. It is not an abdication of the responsibility to interpret the Constitution. Instead, the interpretive role played by the court is restricted to a determination of whether another branch of government is assigned exclusive authority. That was the case in Nixon v United States, an instance where the U.S. Supreme Court recognized that the legislative branch, not the courts, was empowered to decide the substance of the matter at hand.

Textually Demonstrable Language COMMIT Matter to the President

Just pause for a moment. Consider this other argument from Nandlall “If Mr. Williams is right, it means that the President is above the Constitution and therefore the President is supreme and not the Constitution.” It is a Fallacy. The President is NOT elevated above the Constitution because I interpret Article 161 as having delegated to him, the substantive determination of the suitability of a nominee to serve as the Chairman of the Guyana Elections Commission (GECOM). The Constitution is the fountain from which the President draws his power. Therefore, how could he be supreme when he is taking a sip of that authority?

In my previous article I outlined why asking the judiciary to interpret the meaning of “fit and proper” in Article 161 is an exercise in futility. If properly litigated, the case should be dismissed because the court should interpret Article 161 as a delegation of authority to another branch of government. This is the reason why the U.S. Supreme Court in Baker v Carr and Nixon v. United States, as recent as 1993 stated:

A controversy is nonjusticiable where there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it ….” These two concepts are not completely separate; the lack of judicially manageable standards may strengthen the conclusion that there is a textually demonstrable commitment to a coordinate branch.

We circle right back to the argument I put forward in Dancing on Black Ice. There, I argue that Article 161 contains textually demonstrable language committing the appointment of a Chairman of GECOM to the President. I further point out that the overriding subjective veto conferred upon the President, results in NO judicially discoverable and manageable standards for resolving a dispute arising from a rejection of a list of Nominees, without judicial overreach. Responding to my argument, the former Attorney General fails to address this threshold question. Instead, he opted for a generalized recital of principles of law, mixing falsehood with truth to create a kurfuffle.

Appointment of A GECOM Chairman NOT Suited for Judicial Review

A significant rationale that underpins the political question doctrine is the need for finality and effective functioning of the state. The doctrine recognizes that certain ministerial functions must be performed expeditiously and with finality. The preservation of the state itself may be impacted by a lack of finality. Appointment of a Chairman of the Elections Commission is one such matter.

Let’s take a look at the practical implications of judicial review in this sphere. Judicial review is a long process that could take months and some times years. Even when a decision is made by a court of first instance it may be appealed until the case makes its way to the court of last resort. This means, the mere ministerial function of appointing a Chairman could be delayed for months and even years. Worst yet, a Chairman could be appointment and then find his appointment revoked by an order of the court. Consider the chaos that would befall the state.

Consider the fact that repeated appointments could be challenged and each challenge having to make its way through the judicial process. Consider too that a vacancy may arise months before an election as a result of incapacitation or death of a GECOM Chairman. When you add judicial review to the mix, you would see how pivotal the political question doctrine is to a democracy. President Granger has already complained that the delay caused by the brouhaha, could impact the Commission. I hope you see why the Constitution gives the President an overriding veto. Nandlall retort is:

No legal system in a society where the rule of law prevails will ever countenance an absolute discretion, irrespective of how unfettered it may, ex-facie, appears:- Anil Nandlall

He overlooks the argument put forward in Dancing on Black Ice that his reliance on the general principle that NO discretion is unfettered is NOT applicable in this case because NO vested individual right is involved. I explained that the law has carved out an exception to this rule when individual rights are NOT implicated. This was illustrated in Zivotofsky v Clinton, when the U.S. Supreme Court sidestepped the political question doctrine because a vested individual right was affected. Ignoring the nuances of the law, the former AG makes the erroneous assertion that “The non-justiciable argument is a relic of a bygone era… (and) has no place in a legal system where the Constitution is supreme. The presentment of this argument by Mr. Nandlall betrays a growing perception that he is among a new generation of Guyana’s foremost constitutional scholars. Not only is it wrong, it reflects a lack of understanding of governance in a constitutional democracy.

Nonjusticiability is a Pillar of Constitutional Democracy

Known as a bastion of Constitutional Democracy with a Constitution fashioned as a repudiation of Royal Perrogatives, the United States is a chief architect of the political question doctrine and the principle o f nonjusticiability. It is the U.S. Supreme Court that says  “the nonjusticiablity of a political question is primarily a function of the separation of powers“. The U.S. is a Constitutional democracy as Guyana is. The U.S. is a common law jurisdiction as Guyana is.

Dancing on Black Ice asserts that the analytical threads that make up the political question doctrine are contained in Article 161 of the Guyana Constitution. Nandlall’s non-responsive opposition to this assertion, offers not one word to challenge it. There is indeed a sliver of cases that falls within this doctrine. This does NOT mean that when it presents itself in Guyana litigants should scream it is dead because of its rarity.

Here is the bottom line, the political question doctrine is not an affront to a Constitutional democracy. As contentious though it may be, it is NOT a relic of a bygone era. It is a pillar that supports a Constitutional democracy. How could it be lost upon any of us that it is a tool created by the judiciary itself to guide its quest to zealously guard the constitution without trampling it? A guard cannot break the vault under his watch then scream “I am the guard”!

 

Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision

It is hard to think of a more flawed interpretation of an expressed constitutional provision than what we are currently witnessing in the feud over the selection of a Chairman of the Guyana Elections Commission (GECOM). Current President David Granger offers a baffling interpretation of the Constitution and former President Bharrat Jagdeo treats us to a juvenile understanding of the Supreme law of the land. The controversy that is brewing may not have occurred had Mr. Granger handled the matter judiciously but, be that as it may, the response from the parliamentary opposition is a perilous waltz on slippery ground.

Vivian Williams P.C.

Result-Orientated

Legal Representation

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Misguided threat to seek Judicial intervention

Jagdeo bristled at the rejection of the list he submitted to the President, threatening litigation and declaring that the Caribbean Court of Justice should be the arbiter. The threat to litigate the rejection of the List of nominees for the Chairman of Guyana’s Elections Commissions, is misguided. The selection of the Chairman of the Elections Commission by the President is nonjusticiable. Nonjusticiable matters are those that the judicial branch cannot impose a remedy on the executive under the separation of powers doctrine. No court could compel the President to accept the list of nominees submitted to him. This is one instance where authority delegated to the executive, is outside the reach of the judiciary.

Even in countries such as the United States, there are categories of cases that are excluded from judicial review. The political question doctrine is a canon of statutory and constitutional interpretation that restrains courts from enquiring into the exercise of authority by the executive. The simple fact  is this, there are instances where the discretion of the executive is absolute. The selection of the Chairman of the Elections Commission is one such case. The President is the ultimate arbiter not the court. No judge could overturn his decision or direct his action.

Why the Issue is NonJusticiable

It is clear from the reading of the Constitution that the selection of a Chairman of GECOM is outside the purview of the courts. It is in the realm of the political question doctrine not individual rights. There is overwhelming precedents crystallizing the principle that a court can never be called upon to be the umpire in questions that are merely political in nature. Political question cases are those that involve issues that are delegated to the executive for resolution. They are also characterized by the absence of manageable standards by which the judicial branch could serve as umpire. A clear test is whether the judicial branch could provide cognizable and meaningful remedy without usurping authority delegated to another branch of government.

In the case of the selection of the Chairman of GECOM, the Constitution delegated authority to the President with utmost clarity. It is an issue unequivocally delegated to the President for resolution. Article 161 is clear that the President “shall” appoint the Chairman. As to who the President may appoint and how the appointment is made, Article 161 commits the issue to the President as the ultimate arbiter. Even where it outlines the required qualifications for appointment, it defers to the President, stating that not withstanding the requirements, the List must not be “unacceptable to the President”. This means that even a list that satisfies the “fit and proper” requirement could be rejected by the President. Bottom line- the court cannot order the President to accept any list of potential nominees. Surely, this is a case where the principle of judicial deference also applies.

It is also clear from the wording of the Constitution that there is NO manageable standard by which the court could resolve a dispute. Former President Jagdeo and Former Attorney-General Anil Nandlall are glossing over the part of Article 161 which states “not unacceptable to the President”. This clause introduces a highly subjective element that does two things. First it renders the discretion of the President absolute and secondly, and perhaps more critically, it gives rise to the absence of manageable standards for judicial intervention. No judge could enter the mind of the President to determine what is or is not acceptable to the President. Critically, NO judge could impose his or her own standard of acceptability upon the President. This is the essence of what constitutes a nonjusticiable matter –impotence on the part of the court to fashion a remedy.

It is important to note that historically, the Constitution vested the President with sole and unilateral authority to appointment a Chairman of GECOM. This is indicative of the political question doctrine outlined above. Further, when the Constitution was amended, it retained the authority historically vested in the President as the ultimate arbiter with the controlling clause “not unacceptable to the President”. The PPP was in power at the time of the amendment and controlled a majority of seats in Parlaiment. The PPP therefore, opted to retain the broad delegation of powers vested in the President, so it has no moral standing to complain now. Article 161(2) is a creature of the PPP that has come back to haunt.

Former AG Misapplies Doctrine of Check on Abuse of Discretion

Ignoring the nonjusticiable nature of the controversy, former President Jagdeo declared that the matter should be decided by the Caribbean Court of Justice. The assertion reflects a more juvenile than profound understanding of Guyana’s Constitutional jurisprudence from a man who has been the country’s chief constitutional officer for more than a decade, perhaps an indication of how lightly the constitution has been taken. It is rooted in an unusual misapplication of legal principles by former Attorney General Anil Nandlall, who has emerged as the PPP’s chief legal adviser. Nandlall presents the following flawed arguments in letters to Kaieteur News and Stabroek News, titled  The Powers of The President Under Article 161  and The Constitution Lists two Categories of Persons Eligible to become GECOM Chairman. The flawed arguments are highlighted in bold type.

  1. Judicial Intervention is necessary because President Granger’s rejection of the list submitted to him, is based on an erroneous interpretation of the Constitution-his apparent failure to consider the “fit and proper” qualification stated in article 161: The President’s interpretation of “fit and proper” does not turn a nonjusticiable matter justiciable. The former AG is overlooking the fact that even a list of fit and proper nominees could be rejected by the President. Though the “fit and proper” requirement is an objective test, its objectivity is subordinate to the subjective requirement that the list must not be “unacceptable to the President”. By rejecting the list, the President has asserted that it is unacceptable to him. The reason for its unacceptability is immaterial since its is not a controversy for which there is a judicial remedy.
  2. It is only in the event that no list is submitted by the Leader of the Opposition that the President has a power in Article 161(2) to make a unilateral appointment: This is another argument that is without merit. The Constitution expressly provides for the President to appointment a Chairman of GECOM if the list submitted to him does NOT satisfy the requirements of 161(2). The most critical requirement is that the List must not be unacceptable to the President. Therefore, if the List is unacceptable to the President it does NOT satisfy the 161(2) requirement, triggering the President’s discretion to unilaterally appoint a Chairman. You might have heard talks that the Constitution provides that if the List of nominees is rejected a new List may be requested by the President. There is NO such provision in the Constitution.

    What the Constitution states is that if the Minority Leader fails to provide a list as provided for, the President shall appointment a Chairman of GECOM. The word shall should not be lost in translation. Further,  fails to provide a list as provided should not be interpreted as NOT providing any list at all.

  3. While the Constitution confers a discretionary power on the President to accept or reject any list, no discretionary power, irrespective of how untrammelled it may appear to be ex-facie, is absolute. While the legal principle propounded here is profound, its application is misplaced. The curtailment of the use and abuse of executive discretion is reserved for cases of vested individual rights. The selection of the Chairman of GECOM is not a matter of vested rights and as such, this legal doctrine does not apply. All of the cases cited by Nandlall to support his argument, involve vested legal rights.

So despite Mr. Jagdeo’s huff and puff, when it comes to the appointment of a GECOM Chairman by the President, the former President and AG are dancing on black ice. They are threading on slippery surface and don’t even know it. If they are NOT careful they could soon lose their balance but then again, Mr. Granger has lobbed the ball back in their hands. Could someone say who is calling play for the APNU/AFC government?

Look for my next article!

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Executive Fumbles: Granger’s Handling of the Appointment of a GECOM Chairman

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