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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