President David Granger yesterday said that Opposition Leader Bharrat Jagdeo will be given the clarifications he is seeking over the rejection of the nominees for chairmanship of the Guyana Elections Commission (Gecom).
He did not state in what form the clarifications would be had or addressed or if he would acquiesce to Jagdeo’s request for an urgent meeting to discuss the matter. However, sources have told this newspaper that the clarifications would be in the form of written correspondence and there would not be a meeting.
Jagdeo’s party, the PPP, wants Granger to explain what constituted fit and proper for him and also what made the six persons whose names were submitted for the post of Gecom Chairman unfit and improper. The party warned that it would not accept any unilateral selection of a Gecom head.
“It would be helpful in the legal clarification, which the President promised to proffer, that he states the reasons for his deeming each of the six persons rejected unacceptable,” PPP executive member and lead Legal Advisor on the matter, Anil Nandall, told Stabroek News yesterday.
“Once there is a list submitted, the President has no power to make a unilateral appointment. The only time the President has the power to make a unilateral appointment is when no list is submitted. No unilateral decision by the President will be accepted.”
The former attorney general was referring to statements made by the President yesterday that he would provide to the Leader of the Opposition, the legal clarifications he sought on the criteria for the position of Commissioner of Gecom.
“I am not playing politics. I am serious about the appointment of the Chairman of Gecom and as far as I can say, the Constitution is very, very clear. Mr Jagdeo did write to me and he asked for some clarifications. Well it has now gone into the legal zone and we are going to ensure that he gets the legal clarifications that he needs but in terms of the names, I am not in the business of naming names at this stage,” the President said yesterday at State House on the sidelines of the accreditation of the Nepalese Ambassador to Guyana, Dr Arjun Kumar Karki.
“I am in the business of satisfying the Constitutional requirement for the appointment. The law will prevail and we will continue to engage the Leader of the Opposition as is required under the Constitution… We are looking at everything under the legal framework not within the framework of politics or personalities,” he added.
The Head of State emphasised that regardless of what obtained in the past, now that the responsibility has been vested in him as President of Guyana, the provisions of the Constitution will be followed.
And responding to questions on his acceptance of the nomination for the Gecom Chairmanship by late president Hugh Desmond Hoyte back in 2000, the President said that the Constitution explicitly states the requirements for the position. He noted that any breaches that may have occurred in the past must not be allowed to persist.
“My understanding is that at all material times a member of the legal profession or several members of the legal profession were on the list but my acceptance of the nomination …does not necessarily mean that I must accept the six names that were submitted. So it doesn’t follow the law of what you would call the non sequitur …So the point is, even if the Constitution had been breached, or a nomination been made in breach of the Constitution, 10 or 20 years ago, there is no need to repeat it… That’s not a precedent. I am accepting now as President that the Constitutional provisions must be applied,” Granger posited.
‘Fit and proper’
Offering his views on the issue yesterday, Attorney General Basil Williams SC said, “The Constitution is correct… lawyers, judges …or any other fit and proper person. Only the President can determine who is a fit and proper person,” Williams asserted.
Asked if the President believed that only a judge or past judge should be chosen as Gecom Chairman, Williams clarified, “No the President is not saying that. The President is emphasizing that when you read Article 161(2), it largely refers to the judicial types of possible candidates for the job. He is not saying that he doesn’t know that there is another category of any other fit and proper person. What he is saying, as far as I see it, is… where our country is, that person who is going to take up that job must have that background. The judicial background of a lawyer who could be a judge. That is what I think he is saying.”
Meanwhile, Nandlall said he was relieved that the government has recognized that Article 161(2) caters for a category of persons other than those who are judges, former judges or who are qualified to be judges and that it is now conceded that the said article also caters for any other fit and proper person.
But he said that he and his party would not accept Williams’s position that the President is the lone decision maker on choosing the Chairman.
“We know that after listening to the President speaking to the media last Sunday that was not the position. I am happy that the President has decided to offer some clarification on what he understands the requirements of 161(2) to mean. In relation to the AG comments today, with regard to what the President said on Sunday, I heard and the nation heard and read what the President said. The press reported what the President said as well.
The distinct impression which one got, by what was said was that the President understood article 161(2) to cater for only judges, former judges and those qualified to be judges. That was the clear impression conveyed by the media as well,” Nandlall said.
“I am pleased that this issue is now being clarified and that the full ambit of the article is being appreciated, but I take issue with the AG insofar as he implies that the President has the power to make a unilateral appointment if he is not satisfied with a list submitted by the Leader of the Opposition.”
Nandlall, rejecting Williams’s assertions, said, “In my view, a fit and proper person must be determined objectively having regard to the context in which it is used. Here we are speaking about the Chairman of an Elections Commission. A fit and proper person in this context, will obviously include characteristics such as competence to discharge the functions of that office, political impartiality, integrity, honesty and the courage to make tough decisions among others. So it is not the President’s prerogative to determine who is fit and proper. However, the persons must find the acceptability of the President. Thus the President’s discretion does not relate to the fitness and propriety of the person. It relates to whether he finds the person acceptable. That is his discretion.
“As I have pointed out in my writings, no discretion is absolute, irrespective of how unfettered it may appear to be. Every discretion is circumscribed by law.
It must be exercised reasonably in an objective manner and not capriciously and arbitrarily; it must be influenced by relevant consideration and not extraneous consideration and it must be exercised in good faith, having regard to all the relevant circumstances.
So the President can’t deem a person unacceptable because he does not like the colour of his hair or eyes. These will not affect his suitability to discharge the functions of the chairman of the elections commission.”
The PPP Shadow Minister of Legal Affairs noted that the term “fit and proper” is used in legislation and constitutions throughout the Commonwealth and has been interpreted by judges. The legal and judicial literature on the matter should be researched by government, he added.
