Latest update April 25th, 2024 12:59 AM
Mar 06, 2017 Letters
Dear Editor,
I submit the conclusion re; my letter of Saturday, March 04, 2017 captioned, “The mental gymnastics of the Attorney-General.” 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.
Anil Nandlall
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