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”!