ON THE WARPATH AGAINST THE CONSTITUTION


Many may remember that the Judicial Service Commission (“JSC”) recommended the appointment of prominent lawyer Miles Fitzpatrick as an acting Judge in the early 1970s. Mr. Fitzpatrick then turned up at State House on the appointed day to be sworn in by the then President, His Excellency Arthur Chung. The President failed to appear, in his own house. The swearing-in was aborted and Mr. Fitzpatrick was never appointed. The Independence Constitution and its 1980 substitute provided that the President “may appoint” judges who were recommended by the JSC.

In 2001 the authority of the JSC was strengthened, and the discretion of the President was removed, by the substitution of “shall” for “may.” Article 128(1) now provides that Judges other than the Chancellor and Chief Justice are appointed by the President “who shall act in accordance with the advice of the Judicial Service Commission.” Article 128(2) now provides that “the President shall act in accordance with the advice of the Judicial Service Commission and appoint a person to act in the office of Justice of Appeal or Puisne Judge, as the case may be.” These amendments were based on the recommendations of the Constitution Reform Commission (“CRC”) in 2000.

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GOVERNMENT AND CONSTITUTIONAL OFFICE HOLDERS


Minister Winston Jordan’s outburst at Auditor General, Deodat Sharma, a constitutional office holder, was unusual. While it came from a man of moderate temperament, it offends what is or should be the normal practice, namely, that the executive should not publicly chastise or question decisions of independent, constitutional office holders except within official channels. The issue was the Auditor General’s opinion that certain government expenditures did not qualify as emergencies and so were not properly charged to the Contingencies Fund.

The Minister’s view was that the Auditor General has no jurisdiction under the Fiscal Management and Accountability Act (“the Act”) to pronounce on whether an expenditure qualifies as ‘urgent, unavoidable and unforeseen.’ He argued that the decision is that of the Minister who reports to the National Assembly. The Minister further suggested that in the past the Ministry was given the opportunity to edit the Auditor General’s Report but that such a facility has been withdrawn. The Auditor General rejected the Minister’s assertions.

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THE RIGHT TO QUESTION


The right to question took centre stage last week in the National Assembly. The Speaker ruled that Mr. Anil Nandlall abused the right in relation to a number of questions tabled by him. The questions appeared to be quite innocuous, even if the information sought was a bit much. In relation to the persons pardoned by President Granger during last year, the questions asked for their names, addresses, offences committed, criminal records, length of sentences, process and criteria employed, how many persons granted pardons were subsequently charged with offences, the names of those persons and the offences for which they were charged.

The Speaker was not required to and did not give any reasons for his ruling. But over the past fifteen years Speakers have sought to explain their rulings in order to demonstrate that their decisions are based on rational considerations. This effort was intended to limit allegations of bias.

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CONSTITUTIONAL CONUNDRUMS


Among the events after elections are: (1) After the vote count, the results declared by the Chief Election Officer. (2) The electoral quota is calculated by dividing the total number of votes cast by the total number of MPs. (3) The votes obtained by each list is then divided by the electoral quota which allocates the number of seats to each list. (4) The list representative extracts from the list and submits to the Chief Election Officer the names of those persons to become elected members.  (5) The Chief Election Officer declares those names to be the names of candidates on such list who have been elected.

The Chief Justice (ag) said, in the recently decided case of Morian v The Attorney General and the Speaker of the National Assembly, that all candidates become elected members of the National Assembly before the allocated of seats among the successful lists, that is, before stage 3. He said: “It is further clear that members of such successful lists are constitutionally recognized as ‘elected members’ even before the stage of allocation between those successful lists is reached – let alone before extraction (or selection) is made by the representatives of such lists after such allocation of seats between or among the successful lists.”

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GREEN AND YELLOW


In the National Assembly last week, an Opposition PPP MP, Alister Charlie, criticized the use by the Government of green and yellow as the colours to paint various public objects, such as car tyres around plants and trees. The criticism was that these were the colours of APNU and AFC and their use reflects the reintroduction of the doctrine of paramountcy of the 1970s whereby the ruling Party held dominance over the state. The Opposition expressed fears that soon, just as the PNC flag was flown at the Court of Appeal, the colours of APNU and AFC, green and yellow, would be used to paint public buildings.

The Speaker, Dr. Barton Scotland, would have none of it.  He ruled that green and yellow are the colours of the national flag, the Golden Arrowhead, and cannot therefore be the object of ‘lampooning’ in the House. ‘Lampooning’ appears to have been used in a broad sense, meaning “criticizing” or “objecting to.” Decisions of the Speaker are final. There is no appeal. But because there was no detailed rationale by the Speaker for his decision, we are left to wonder whether his ruling means that no criticism can ever be made of the use of the colours green and yellow at all in the House, or whether criticism of the use of the colours would only be disallowed if it relates to the Government use of them to paint public objects. The Speaker’s decision was vigorously criticized by the Opposition.

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