Dear Editor,
Your Friday, January 20, 2017, lead story, ‘I am going to choose somebody who is fit to be a judge,’ attributed to President David Granger on the appointment of the next Gecom Chairman, should come across as a stance taken by a strong and decisive leader.
Unfortunately, the President imprudently further reduced his own leadership strength by deferring to a less than stellar subordinate (the Attorney-General) the simple task of informing the Opposition Leader’s representative he wants two or three judges – whether sitting, retired or eligible to be appointed a judge ‒ to be thrown into the mix of names on the next list to be presented by the Opposition Leader.
Had he done that he would not have needed to look intellectually deficient by adverting to the fact that, since neither he nor the Opposition Leader is a lawyer and he did not want any legal misunderstanding, he’d prefer to have two legal minds from opposite sides of the political divide, flesh out the matter before a possible final agreement is reached between the President and Opposition Leader.
Then to our dismay, before the two legal emissaries have even met, the President tactlessly prejudiced the outcome of the meeting by claiming he will appoint someone who is fit to be a judge, instead of saying he prefers to have someone who is either a sitting or retired or eligible to be a judge, thereby signalling his preference to the Opposition Leader to place the names of such preferences on the list.
Editor, the constitutional clause governing the selection of the candidate for the Gecom Chairman’s job is plain and straightforward, and a simple deconstruction of the clause would help any layman to see the entire process from start to finish.
According to Gecom’s website, “The present GECOM was established in May 2000 by virtue of the Constitution (Amendment) Act No. 2 of 2000, which repealed and re-enacted article161 of the Constitution on the basis of recommendations emerging from the Constitution Reform Commission that were ratified by Parliament…The Chairman shall be a person who holds, has held or is qualified to hold the office of Judge of the High Court or the Court of Appeal or any other fit and proper person who is appointed from a list of six persons, who are not unacceptable to the President, submitted by the Leader of the Opposition after he has meaningfully consulted with the non-governmental political parties represented in the National Assembly. If the Leader of the Opposition does not submit such a list of persons then the President shall appoint a person who holds, has held or is qualified to hold the office of Judge of the High Court or the Court of Appeal. The current Chairman of the Commission was chosen by the President from a list of six persons submitted by the Leader of the Opposition.”
When broken down, this amended clause was ratified by Parliament, which means that the highest decision-making forum in the land was in agreement with the authors of the clause that the first preference for the post of Gecom Chairman should be a judge – whether sitting, retired or someone eligible or qualified to hold the office of Judge of the High Court or the Court of Appeal.
Logic should tell us the thinking of the authors, at that time, was that they wanted a sober and serious person for this job; someone incapable of being politically compromised and of exemplary public standing; someone who has a background in law and understanding of the legal system, given that the potential exists for court filings arising from contentious election outcomes. There clearly was a deliberate effort by the authors to go for judges as a first option and this should not be ignored as part of the process.
In the event there was no one from this preferred category of judicial members and qualified legal minds readily available to assume the post of Gecom Chairman, the fallback option was for non-judges, perhaps still of a legal background, but of exemplary public standing and incapable of being politically compromised, given that past elections were tainted under both the PNC and PPP.
These non-judges would fall in the category of ‘fit and proper persons’, but they must also be acceptable to the President. And it is this last part of what constitutes ‘acceptability’ or ‘unacceptability’ that has engaged many of us in a national conversation; perhaps cussing out, as we try to make sense of what is really happening and what needs to be done.
In retrospect, I firmly believe the President fumbled the ball, which has become part of his leadership style over the last 20 months in office. Anyway, all he had to do, after the Opposition Leader presented the list, was to inform him that he found the list unacceptable simply because he wanted to break with precedent of having a list of persons exclusively from the ‘fit and proper’ category, and to start adhering to the full spirit and letter of the pertinent constitutional clause by having a list that includes some judges – whether sitting, retired or someone of a legal background qualified to be appointed to the High or Appellate Courts. Either a list of six judges or eligible to be judges-types, or a list of three from the former category and three fit and proper persons.
This clarification or explanation is a straightforward move that did not require the current Attorney-General meeting with the former Attorney-General. Are we to now expect the two attorneys-general to meet and then go back to their respective bosses and break down their discussion in layman’s language? What’s next, crayons and colouring books? Come on!
Yours faithfully,
Emile Mervin