President not above the Law – Fmr. Attorney General Anil Nandlall

I observe a nicely written piece by Mr. Vivian Williams, Attorney-at-Law on the issue of the appointment of the Chairman of Gecom. Among the arguments advanced by Mr. Williams is that the President’s powers and discretion under Article 161(2) of the Constitution are absolute and non-justiciable and therefore beyond the reach of the Judiciary.

This argument is at best anachronistic, quaint and antiquated and at worst, palpably and manifestly erroneous. No legal system in a society where the rule of law prevails will ever countenance an absolute discretion, irrespective of unfettered it may, ex-facie, appears. Public and Constitutional Law texts are replete with authorities to support such contentions. This position suffers no exceptions. Absolute discretion is the very anthesis of the rule of law. I will recite two judicial pronouncements which I have used before to support this contention:

1.      “‘discretion’ means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke’s case; according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.” (Lord Halsbury in Sharp v Wakefield (1891) AC 173)

2. “the discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law.” (Lord Denning MR in Breen v Amalgamated Engineering Union (1971) 2 QB 175, 190)

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. In this regard, even the legal immunities which the Constitution confers upon the President has been held by our Court of Appeal to only immunize the President, personally, from suit but not his actions. His actions are not above the law or the Constitution and remain reviewable by the Court by a suit to be instituted against the Attorney-General. (See Baird v Public Service Commission and the Attorney-General (2001) 63 WIR 134)

If Mr. Williams is right, it means that the President is above the Constitution and therefore the President is supreme and not the Constitution. This would be in violent contradiction to Article 8 which declares the Constitution to be supreme. It would also mean that the President would be above the law. This is the anthesis of the rule of law. The quintessence of which is that no one is above the law; all is equal before the law. Professor A.V. Dicey, expresses the matter thus:

“not only that with us no man is above the law, but that here every man, whatever may be his rank or condition is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals…With us every official, from Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen.” (A.V. Dicey, Introduction to the Law of the Constitution, 9^th edition, 1948)

Of course, Professor Dicey was speaking of the British legal system, where there is no written constitution and where parliament is supreme. His statements will apply, a fortiori, in a legal system with a written constitution which is supreme.