Dear Editor,
Like every other reasonable-minded Guyanese but moreso, because I played a role in assembling both lists of persons which the Opposition Leader submitted to the President for the appointment of a Chairman of GECOM, I am disappointed by the President’s rejection of these lists.
I continue to maintain that the President has managed to make, what was, historically, a very smooth and straightforward exercise, one that is now complicated and politically acrimonious. I also maintain and with due respect, that the President cannot seriously boast a better understanding of the Carter Formula and its constitutionalization expressed in Article 161 (2) than Mr. Hugh Desmond Hoyte S.C. This is so because Mr. Hoyte participated in the coinage of the Carter Formula and was an eminent Senior Counsel and was therefore schooled in the interpretation of a constitution. Mr. Hoyte participated four times in the process of compiling names and submitting them to different presidents of the PPP Administration with seamless ease and without any controversy whatsoever. Those who are now contaminating the President’s mind with absurd legal advice in relation to the interpretation of Article 162 were around at that time but would have dared not tried that with Mr. Hoyte. He would have simply not tolerated it because he knew better.
Unfortunately, what we now have is a bizarre interpretation of Article 162 which distorts both the letter and the spirit of the Article. For example, the President tells us that Article 161 (2):
(1) accords priority in relation to persons who are judges, former judges and persons qualified to be judges over and above “any other fit and proper person” when the Constitution does no such thing;
(2) that these persons must not be religious leaders or part of any faith-based organization; again the Constitution does not so discriminate;
(3) that the person must not be an activist in areas such as human rights, gender discrimination etc; again Article 161 (2) contains no such exclusion;
(4) that all six persons must be found acceptable before the President chooses one; in other words, if five are and one is not, then the entire list becomes unacceptable and therefore, the President refuses to choose one from the five, though he finds them acceptable.
It is this erroneous and warped interpretation which has misled the President in rejecting the two lists submitted. Unless this abysmal error is corrected this cyclical exercise of submission and rejection of lists may become never-ending. I must reiterate that while Article 161 (2) resides with the President a discretion in so far as the list must find his acceptance, this discretion cannot be capriciously and whimsically exercised. It must be exercised reasonably and the President is obliged to take into account only relevant considerations and discount from his mind, irrelevant considerations.
The methodology which the Leader of the Opposition has used in compiling these two lists proves that the President’s exercise of his discretion does not accord with the rest of the society. In my view, that is a strong indicia that the President is wrong. The Leader of the Opposition did not compile these lists by himself. Rather, these names were generated from a wide consultative exercise involving the major stakeholder organizations in this country. These organizations consulted with their respective constituencies and produced these names. These constituents number tens of thousands of people. It is simply illogical to argue that all of these people are wrong and the President and his legal advisors are right.
Finally, finding another six names in compliance with the President’s fallacious construction of Article 161 (2) of the Constitution, would now become near impossible. The pool to draw from has become significantly narrower. More importantly, more persons would become even more reluctant to offer their names for the fear of the public damage and humiliation to their professional reputation, character and image by the President’s cavalier rejection of their names.
In the circumstances, the nation has no alternative but to hope that the proposed engagement between the President and the Leader of the Opposition would result in the President’s resiling from his misinterpretation of Article 161 (2). If not, the consequences to this nation may be dire for which the President will have to accept responsibility.
Yours faithfully,
Anil Nandlall
