…the constitutional line
Still can’t get over the decision by the two Appellate Court Justices on that NCM. One friend pointed out that there is such a thing as “judge made law”; so while the Justices might’ve stretched things a bit, it’s within their remit to do so. But what he ignored was this was not just any old law — like manslaughter vs murder — that the Judges could extend from what their predecessors had ruled (stare decisis) by INSERTING A NEW WORD INTO THE CONSTITUTION to change the import of the original clause!!
This is just not done!! The Constitution is a fundamental document that gives legitimacy to our entire state and its institutions. Now, we know circumstances change, and the Constitution must change to deal with those exigencies, but the Constitution itself has AMENDMENT procedures to deal with that need. Judges can’t just wake up one day and decide to alter the Constitution on their own.
Our Constitution, for instance, has Art 164, which deals with the procedures for amending any or all of its contents; and in fact distinguishes the word “majority”, in front of which the Appellate Court arbitrarily inserted the word “absolute” to rule that 33 was not the majority in our Assembly with 65 seats! It stipulates that most Articles of the Constitution can be changed by “a majority of all the elected members of the Assembly”; other enumerated ones need 2/3 of all elected members’ approval; while the remaining few need a referendum, in which a majority of the voters agree.
The use of the word “majority” to involve “all the elected members of the Assembly” — also used in Art 106 (6) under consideration — can be juxtaposed with its use in Art 168 (1), where it stipulates: “questions proposed for decision in the National Assembly shall be determined by a majority of the members present and voting.”
In her High Court decision, Justice George alluded to the first usage as what some may call an “absolute”, and the second as a “simple”, majority; but went on to caution that what was needed to be interpreted was as USED in the Constitution in Art 106 (6).
There was no need for the two Appellate Judges to interpolate the word “absolute”, and justify it as being needed because of the IMPORTANT implications of Art 106 (6). The Constitution ALREADY acknowledged its importance by explicitly insisting that “ALL” members — not just those present — be counted!! The interpolation appears anomalous, making it difficult not to question the rationale offered.
When Judges extend legal precepts, they must at least SEEM sound, just and correct.
The Judicial insertion of “absolute” fails this test.
…the GECOM line
This Friday, we’ll get the CCJ decision on President Granger’s unilateral appointment of James Patterson as GECOM Chair. While the lower courts in Guyana had said it was okay, it’ll be hard for our apex court to deny that the INTENT of the framers of the Constitutional Art 161 (2) — that the Chair should be from a list of 6, by the Opposition Leader, not unacceptable to the President – wasn’t to have some sort of agreement on the Chair, who’d have the CASTING vote.
If there needed to be any proof of why any unilateral appointment of the GECOM Chair was not in the best interest of the country, it was offered by the subsequent action of Patterson, to collude with Granger to delay elections and vitiate the NCM. Their decision might offer some clue as to where their collective heads may be with the just filed PPP’s Appellate Ct appeal.
Meanwhile, Patterson and crew are plowing ahead with house-to-house registration. They’re convinced the CCJ will rule for the Govt!!