Dear Editor,
Professor Justice Duke Pollard’s reasoning in his letter ‘The President was correct to characterize the list for Gecom Chairman as unacceptable’ (Stabroek News, Jan17) is partly flawed. To the extent that his interpretation of Article 161 (2) identifies the three categories of personnel, and implied attributes which should inform the appointment of a Chairman of the Elections Commission, he is correct. One cannot arrive at another valid interpretation if the article is read according to its punctuation and linguistic context. Further, his interpretation exposed and diminished the deficient arguments of the political divide. At least, both President David Granger and Opposition Leader Bharrat Jagdeo anchored their reasoning in a partial understanding of the article. Both are obligated to proffer their optimum understanding and application of the constitution. The President must be complimented however for beginning a process of redirecting the country’s focus to the rule of law.
While this submission agrees with the Professor’s interpretation it takes issue with his conclusions. He states that for the President “to make a fair and balanced choice he must be given in equal number persons possessing the attributes described above (impartiality and even-handedness), and in the present circumstances two persons from each category (a judge, person capable of becoming one, or any other fit and proper person)”. This is a thought of reasonableness and discretion, not a justiciable obligation. Nothing in the article restricts the leader to that formula. Nothing, for instance, constrains him from even providing a list of only judges. Yet even if he does so, the President is legally privileged to reject it. Judges are not inherently impartial and even-handed. However, constitutionally, whomever the President agrees on must possess the professional attributes expected of a judge.
My second aspect of disagreement is with the implication of the conclusion. It suggests that the President is the arbiter of the list. This would only be valid if the executive presidency was absolutely imperial. Instead, the Guyana constitution was informed by an admixture of socialist and parliamentary democratic philosophies, which means that in some instances the socialist logic would take precedence and in others, the parliamentary democratic logic would have primacy. Though contradictory in several aspects, such as between the principles of authoritarian and democratic governance, private and social property rights, the philosophical foundation of the constitution cannot be ignored since it determines the legal spirit and intent of the fundamental law. Thus, in accordance with the spirit and intent of the parliamentary dimensions of the Guyana constitution, the President cannot be said to be an arbiter of the list but a negotiator with his parliamentary adversary. By implication, a Gecom chairman has to be both legally and politically fit; he must be suitable to both sides of the political divide. In both explicit and implicit meaning, Article 161(2) provides the parameters within which the President and the Opposition Leader must negotiate since they represent partisan divides.
Yours faithfully,
Lin-Jay Harry-Voglezon