On Friday President David Granger rejected the Leader of the Opposition’s nominees for the post of Chairman of the Guyana Elections Commission (Gecom). This was his second rejection of a list from Mr Bharrat Jagdeo, and it was conveyed in a letter which was notable both for its brevity and its lack of explication for his decision. In addition, it gave no indication of what the President considered the next move should be.
Perhaps the Head of State subsequently recognized its shortcomings, because by Friday evening the Ministry of the Presidency had issued a press release describing an interview its Press and Publicity Unit had had with the President. In it he was quoted as saying: “Every member of the list suggested must conform to the criteria and you cannot put on the list, a person who does not conform … I must be given a choice. I don’t believe that the second list gave me the range of choice that the people of Guyana deserve.” And as for what happens now, Mr Granger was reported as saying: “I expect that he [Mr Jagdeo] would go back to the drawing board and produce a list which conforms to …[constitutional] criteria.”
The delay in the appointment of a Chairman of Gecom has being going on now for nearly six months. In the release, President Granger was reported as noting that local government elections were imminent and that a chairman was required for the preparation of general elections too. He then put the onus on the Leader of the Opposition to do “what the Constitution requires him to do … and he has not done that as yet.” Unfortunately he has got reality in reverse; the Leader of the Opposition has done on two occasions what he is supposed to do, and it is the President who is impeding the process. The time lag too, has to be laid at the President’s door, since in addition to his rejection of the lists, he procrastinated for a month before declaring the second one unacceptable.
From the beginning the President’s reading of the relevant article in the Constitution enumerating the qualifications required for someone to become chairman of the commission has been eccentric at best. What Article 161(2) says is that the chairman should be chosen by the president from a list of six persons submitted to him by the leader of the opposition. That list should comprise individuals who hold or have held the office of judge of a court having unlimited jurisdiction in civil and criminal matters somewhere in the Commonwealth, or a court having jurisdiction in appeals from any such court, or anyone qualified to be appointed any such judge, or “any other fit and proper person.”
Under this Carter formula, as it is known (and its earlier formulation) chairmen of Gecom have been appointed without hitches, without query, and without acrimony, and they have always come from the first list. Multiple lists were probably never envisaged by the Carter Center and the politicians who accepted the formula. It might be added that the President himself was twice on President Hoyte’s lists for appointment to the Gecom chairmanship, a fact which reporters have not been laggard in drawing to his attention. He responded to them indirectly: “Even if … a nomination [has] been made in breach of the Constitution, 10 or 20 years ago, there is no need to repeat it.”
As it is, therefore, he has held on doggedly to an interpretation that the person should be (or have been) a judge, or qualified to be a judge, in defiance of what most lawyers and interested members of the public understand the relevant article to be saying. He also referred in his interview at the Ministry of the Presidency to other “criteria” (which the AG said the President had laid down in anticipation of a second list), but which were not met in the list. One would not have to be a lawyer, one would think, to know that if they are not in the Constitution the President cannot amend the latter document to include them; what is in the Constitution is all that counts.
The nominees on the first list were Major General (ret’d) Norman McLean, Mr Christopher Ram, Mr Ramesh Dookhoo, Mr Lawrence Lachmansingh, Ms Rhyann Shah and Prof James Rose. The article cited above also says the persons should not be unacceptable to the President, and clearly from a layperson’s point of view there were some names on that list who would not have been considered by him. However, there were one or two who could reasonably have been adjudged eminently suitable for appointment. This list was rejected by the President, however, because it did not contain the name of any judge, former judge, or person qualified to be a judge.
While the opposition rejected the President’s reading of Article 161(2), their representatives did meet Attorney General Basil Williams for clarification and discussion. Although according to them on their final encounter, he made a concession in relation to the meaning of “fit and proper person”, he still accorded pre-eminence to judges. They rejected this as being inconsistent with the historical evolution of the article, as well as the qualities and qualifications of the persons who have held this position since it came into force.
Nevertheless, Mr Jagdeo decided to return to the “drawing board”, and began consulting with a wide range of individuals and organizations before submitting his second list on May 2, which as stated above was also rejected. This list comprised Justice of Appeal B S Roy (ret’d); Justice William Ramlal (ret’d); Ms Oneidge Walrond-Allicock, attorney-at-law and former magistrate; Mr Kashir Khan, attorney-at-law; Ms Nadia Sagar, attorney-at-law; and Mr Gerald Gouveia, businessman and pilot.
Since the list includes the names of judges or former judges, etc, in accordance with President Granger’s expressed wishes, one can only wonder what is wrong this time. His argument that he has not been given a “range of choice” is quite meaningless, for example, and his claim that the nominees are not “fit and proper in accordance with the Constitution or criteria which have been laid out” borders on the unfathomable. As said above, the President cannot lay out his own “criteria”.
In addition, prior to drawing up the second list of names the Leader of the Opposition said he had consulted 55 representatives of 33 civil society organisations, an exercise which took several weeks. Who is there left to consult now? And supposing he does agree to draft a third list, there is no guarantee it will be accepted. “Nothing is ever settled until it is settled right and he [Jagdeo] has to get it right,” said the President, implying that we could go on like this for some time. It might be observed that it could be difficult finding six persons acceptable to the President who are willing to serve, and the longer this situation continues, the more reluctant suitable candidates will be to have their names on the list.
Inevitably in the circumstances President Granger opens himself to the charge that it is not that every single one of the nominees who have been listed is unacceptable in his view, as that he has one particular person in mind whom he wants to fill the post. If the Leader of the Opposition does not come up with the right name, then maybe he will tire him out with lists, and at the point he refuses to submit another list the Head of State then makes his own appointment.
This is certainly a scenario (or something similar) of which the opposition is fearful. In a press release on Friday the Office of the Leader of the Opposition said in relation to the Head of State acting unilaterally, that Mr Jagdeo “hereby assures that should the President proceed along this unconstitutional, undemocratic and diabolical path there will be litigation and other consequences for which the President will be responsible.”
This is a possible constitutional impasse, therefore, with the potential for all kinds of unsavoury consequences. Apart from the various forms of damage it could do in our fragile political arena, particularly in the area of trust between the parties and by extension their constituencies, it could also do the PNCR itself a huge amount of harm. That party had finally emerged onto the democratic stage, admittedly in a coalition, but nevertheless via a ballot process that was certified as free and fair by international observers. Why should it want to sully its commitment to democracy now, and open itself to the kind of slurs that its opponents are only too willing to throw at it, namely, that it really has not changed its ways.
We cannot go on “for as long as it takes,” as the President seems to think, and neither should he put us in a situation where he makes his own selection. He should move quickly to have his representatives speak to the opposition, so that there can be some understanding albeit at an informal level of how we might emerge from this predicament.
