Article 161(2) and the mental gymnastics of an Attorney General

By Mohabir Anil Nandlall, Attorney-at-Law

I have had an opportunity to consider the response of the Attorney General, Mr. Basil Williams, to my interpretation of article 161(2) of the Constitution which I presented to him during an engagement initiated by the President. That response was fully carried in the press. The response spanned four and a half pages, four of which were dedicated to establish that I was wrong in my submission that the ejusdem generis had no application in the interpretation of Article 161(2) of the Constitution with regard to the appointment of a Chairman for the Elections Commission.

The AG’s explanation of what he perceives to be the meaning of the ejusdem generis rule is correct. The meaning he offers can readily be accessed from any basic text book on statutory interpretation.

It appears from the response of the Attorney General, given the fact that he makes no mention of it, that he did not address his mind to the fact that what was being considered was a provision of the Constitution and that an essential principle of constitutional interpretation which I hope he knows or ought to know, is that the Constitution does not fall to be interpreted as an ordinary statute but rather in a broad, liberal, purposive and generous way.

What then has been the interpretation put to Article 161(2) in the half page of a four and a half page opinion. He says “when looking at the construction of the section, one can reason that the categories are in order of preference.” This is indeed a shocking mystifying construction being put upon Article 161(2). Nothing, absolutely nothing in Article 161(2), establishes any order of preference in relation to the qualifying criteria for eligibility for appointment, attaching to the names of the six persons in the list to be submitted by the Leader of the Opposition to the President. If it was intended that there should have been such a preference, the draftsman would have made that pellucid and not leave it to Mr. Williams, SC, MP, to give  Article 161(2) that meaning. It should not come as a surprise, that none of the commentators on Article 161(2) have ever advocated that the Article created any preference.

Article 161(2) creates three (3) categories of persons who may be considered eligible for appointment as the Chairman of the Election Commission. They are a judge, former judge, or a person qualified to be appointed a judge or, any other fit and proper person.

So, taking the AG’s argument, its logical limits, by arguing for the application of the ejusdem generis rule to the interpretation of Article 161(2), and considering the genus which he contends takes preference in Article 161(2), the question arises as to what kind of person would, therefore, fit the description of “fit and proper person.” The Attorney General does not touch this issue in his attempt at interpretation of Article 161(2), though he does recognize “any other fit and proper person” to be a category of eligible persons. Having without any proper reason or justifiable basis concluded that Article 161(2) created preferred categories of persons who may be offered for consideration for the Chairmanship of GECOM (note Mr. Williams did not apply the ejusdem generis rule to arrive at this conclusion, Indeed, he demonstrated no application of the ejusdem generis rule), he then for his “preferred category” method of interpretation, found that that method puts an obligation on the Leader of the Opposition to include a judge from what he describes as the “priority category.”
This is nothing more than mental gymnastics on the part of the Attorney General.

The proviso of Article 161(2) which Mr. Williams, SC, MP refers, is not an aid to the interpretation of the general body of Article 161(2). It is nothing more than a limiting provision on the power of the President which becomes punitive if the Leader of the Opposition fails to provide a list, as provided for, in Article 161(2). Only then the President in that circumstance can appoint a Chairman but in that circumstance, he would be limited to choosing a sitting judge, or former judge or someone qualified to be a judge. It is an opportune moment to point out that there is no failure by the Leader of the Opposition to submit a list, if the President rejects a submitted list. What the proviso targets is the failure of the Leader of the Opposition to submit a list at all.

I take the opportunity to reiterate that the ejusdem generis rule has no application to the interpretation of that Article because of the use of the disjunctive word “or” separates the categories of persons identified in the Article. The use of the disjunctive word “or” conveys a contrary indication of the method of construction of the said Article.

This much is learnt from the very case referred to by Mr. Basil Williams, SC, MP, that is Kochuni v the State of Madras. In the extract to which Mr. Williams, SC, MP, refers, the Court speaking of the ejusdem generis rule observed; “It is not an inviolable rule of law but is only a permissible inference in the absence of an indication to the contrary.”

The Attorney General who has presumably read the judgment of Crane.J.A in the Badri Persaud case to which he referred, must be aware that His Honor explained: “ more specifically as regards the meaning of the words “or” , “other” or “otherwise” prima facie, they exclude the application of the ejusdem generis rule  and when used, they are not to be construed as being of the same genus as specific words which precede them, unless the expression “similar” or some equivalent expression is used or unless the context so determines or requires.”

Another case to which I would like to refer the Attorney General is Maharashtra University v Mandal and others, civil appeal No. 2050 of 2010, a decision of the Supreme Court of India. The Court had under consideration the Maharashtra University Health Sciences Act 1998 and more particularly, Section 2(35) which defined the word teacher to mean.

“Full time approved Demonstrators, Tutors, Assistant Lecturers, Lecturers, Leaders, Associate Professors and other persons teaching or giving instructions on a full time basis in affiliated colleges in approved institutions in the university.”

Justice Ganguly in his judgment noted that “even though the approved teachers and those “other persons” who are teaching and giving instructions fall into two different classes both are encompassed within the definition of teacher under Section 2(35) of the Act. The word “and” before “other persons” is disjunctive and indicate a “different class of people.”

His Lordship continued “But like all other linguistic canons of construction, the ejusdem generis principle applies only when a contrary intention does not appear. In the instant case, a contrary intention is clearly indicated in as much as the definition of “teachers” under Section 2(35) of the said Act is in two parts. The first- deals with enumerated categories but the second part which begins by the expression “and other” envisages a different category of persons and here “and” is disjunctive. So while construing such a definition, the principle of ejusdem generis cannot be applied.”

The Attorney General has failed to proffer any view that would have taken into account, Section 5 of the Interpretation and General Clauses Act which provides that “or”, “other” and “otherwise” must be disjunctively construed. In Article 161(2), each of the eligible categories of persons therein mentioned are separated by the use of the disjunctive word “or”, with the faint hope for the dawning of some understanding. I repeat that the category of “any other fit and proper person” mentioned in Article 161(2) must be construed disjunctively. The Constitution creates no preferential order among these categories of persons. Each category is mutually exclusive and merits independent consideration. In other words, the list submitted by the Leader of the Opposition could be comprised of six judges, or, six former judges, six persons qualified to be a judge, or, six fit and proper persons.

I am troubled that the President will allow himself to be influenced by the opinion of the Attorney General which so patently lacks analysis and scholarship and which is focused on the appointment of a judge which only serves to fuel widely held public suspicion that the interpretation of Article 161(20 by the Attorney General has been tailored with an ulterior objection in mind. Needless to say any unconstitutional stratagem will be forcefully challenged.