Justin Simon, KC, Responds to Sir Gerald Watt

Dear KC Sir Gerald Watt, KCN:

Notwithstanding your labeling me some years ago over the radio as being “vainglorious”, I always admit my error whenever my opinion is sufficiently shown to be wrong. In the words of the ancient Romans: “erratus est humanum” – to err is human. And, I am only a human. But, respectfully, you have missed the two points which I made in my letter. Let’s forget the divisive politics for the time being, and concentrate on the interpretation of the express wording firstly of section 80(1)(a) of our Constitution which, incidentally, you made no mention of in your recently published article; and secondly, of the opening words of section 2 of the Commissions of Inquiry Act.

Section 80(1) of our Constitution makes it abundantly clear that in the exercise of his functions, the Governor-General shall act in accordance with the advice of the Cabinet or a Minister acting under the general authority of Cabinet, “except . . . in cases where by this Constitution or any other law he is required to act – (a) in his discretion; (b) . . . (c) . . .”

Does that section not expressly speak to the Governor-General being able to exercise his discretion where the Constitution or legislation specifically requires him to so act? How then can “convention” be called upon to interpret these clear and unambiguous words? Unlike the United Kingdom which has never had a written constitution and is therefore governed by conventions developed over the centuries, such conventions are only used here for guidance where there is uncertainty in our constitutional provisions or a deafening silence in respect of certain executive matters.

The second question which arises is this: How should the opening words of section 2 of the Commission of Inquiry Act be interpreted: “It shall be lawful for the Governor-General whenever he shall deem it
advisable, to issue a commission . . . into any matter in which an inquiry would, in the opinion of the Governor-General, be for the public welfare. . .” Should these words not be interpreted as giving the GovernorGeneral a discretion to act (or not act), and therefore fall within one of the exceptions to his acting on the advice of Ministers of Government, specifically created by section 80(1)(a), (b), and (c) of the Constitution?

Of course, I accept that in acting in his discretion, the Governor-General is free to consult and seek advice; but in the final analysis the decision (to act or not to act) will be his. And the public would be so advised.

This issue is definitely one of public importance and in the public interest. In light therefor of the differing opinions, would you in your dual authoritative capacity of King’s Counsel and Speaker of the House of
Representatives recommend to the Hon. Attorney General that he file an application seeking clarification by way of a determination/decision from the Court of Appeal, under the provisions of The Attorney General’s Reference (Constitutional Questions) Act, 2009 (No. 10 of 2009)?

Finally and incidentally, as Attorney General I never advised the then Governor-General to remove or try to remove you from your then position as Chairman of ABEC. I can boldly state that I was against that Cabinet decision, opposed the taking of that decision, and took no part in the entire process. Perhaps it’s high time that you move on from that bitterness that you continue to harbour since 2009. For the reasons explained above, I am unable to admit an “error” on my part, and I will therefore not retract my opinion. Let our Court of Appeal
decide!
Sincerely,
Justin L. Simon, KC