Dear Editor,
One notes the debate in the press about the process for selection of a Chairman of the Guyana Elections Commission.
Article 161 (1) of the Constitution reads as follows:
“161 (1) There shall be an Elections Commission for Guyana consisting of a Chairman, who shall be a full-time Chairman and shall not engage in any other form of employment , and such other members as may be appointed in accordance with the provisions of this article.”
Sub para (2) of the article goes on to say as follows:
“(2) Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be a person who holds or who held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly:
“Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge.”
In relation to the vacation of office by the Chairman or member of the Elections Commission the following is stated:
“(5) The Chairman or any other member of the Elections Commission shall vacate his office if any circumstances arise that, if he were a member of the Commission, would cause him to be disqualified for appointment as such.
“(6) The provisions of article 225 [which relate to removal from office] shall apply to the office of the Chairman or other members of the Elections Commission and for the purposes of paragraphs (4) and (6) of that article, the prescribed authority shall be the Prime Minister:
Provided that in the case of the members referred to in paragraph (3)(b), the Prime Minister shall meaningfully consult the Leader of the Opposition before tendering any advice to the President under article 225 (4).”
What is very pertinent to the current debate however is the Article 226 paras (1) and (2) which read as follows:
“226 (1) Save as otherwise provided in this Constitution, in the exercise of its functions under this Constitution a Commission shall not be subject to the direction or control of any other person or authority.
“(2) Subject to affirmative resolution of the National Assembly, a Commission shall make rules, relating to the procedure of the Commission; and until such rules are made, the Commission shall regulate its own procedure.”
Also useful to note that para (7) of the same article reads as follows:
“(7) In this article, except as otherwise provided or required by the context, the expression ‘Commission’ means the Elections Commission, the Judicial Service Commission, the Public Service Commission, the Teaching Service Commission, or the Police Service Commission:
Provided that (without prejudice to the Power of Parliament to make provision in relation to the functions of the Elections Commission) in the preceding paragraph that expression does not include the Elections Commission.”
The latter paragraphs would appear to invite some clarification from the legal experts, that is, if there are any.
But to return to the provision of Article 161 (2) it would appear to allow scope for neutralising the issue of the selection of a Chairman by inviting persons from the Commonwealth who satisfy the criteria set out therein to express an interest in the position.
Having said that, however, it is important at this juncture, (as it certainly was before now) to point out that both government and opposition in their anxiety to score points, (albeit aided and abetted by a delinquent Elections Commission) obdurately refused to pay heed to the very first recommendation of the Carter Observer Mission 2006, which advocated the disbandment of the extant political construct of the Commission – fundamentally overturning the structure which had earlier been designed by President Carter himself. (Horses for courses)
The strong view expressed was that the current management was substantively outdated and invited major reconstruction into a professional entity of which there are models in the Caribbean – Barbados, Jamaica, for example, and in the wider Commonwealth (See Australia, Canada).
It would seem to make eminent sense therefore to start the reformation process with the selection of a Commonwealth judge as the next Chairman of Gecom.
Look forward to how the votes will be cast.
Yours faithfully,
EB John
