The President must give reasons if he decides to reject any nominee submitted for the post of Guyana Elections Commission (Gecom) chairperson, according to the Guyana Bar Association (GBA), which also says that the law does not limit the office to judges.
“In simple terms, the rejection of the entire list would be difficult to lawfully justify, unless it is expressly stated that each of the persons named on the list is specifically and individually rejected,” the GBA has also argued in its submissions to acting Chief Justice Roxane George SC, in the proceedings initiated by businessman Marcel Gaskin, who has asked the court for an interpretation of the criteria for the selection of a Gecom Chairperson, including whether a judge must be among the nominees for the post.
In submissions presented last Wednesday, the GBA, which was recently granted permission to intervene in the proceedings as a friend of the court, gave a detailed analysis of Article 161 (2) of the Constitution, which provides for the appointment and argued that the president doesn’t have “unfettered discretion” and must give reasons for his decision.
The Article states, “…the Chairman of the Elections Commission shall be a person who holds or who has 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 from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the nongovernmental 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 has 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.”
Gaskin approached the court in March seeking a declaration on whether the list of nominees must include a judge, a former judge or a person qualify as a judge, after the first list submitted by Opposition Leader Bharrat Jagdeo was rejected as unacceptable by President David Granger, who has been arguing heavily in favour of a judge or a person with those qualifications to be Chairperson. Gaskin has also sought declarations on whether the President is required to state reasons for deeming each of the six names on the list submitted as unacceptable; whether the President is obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as a fit and proper person for appointment; and whether a finding of fact by the President that any one or more persons is not a fit and proper person renders the entire list unacceptable.
‘Objective standard’
In its submissions, the GBA contended that it is clear that the President “does not have the blanket power to reject a list and must do so pursuant to public law principles,” including natural justice, which requires that reasons must be given.
It added that the ‘fit and proper person’ category set out in the constitution is an objective standard and a decision to reject a nominee because he/she does not qualify to be considered in the category must be one in which the decision maker in possession of all the facts would make in the circumstances and not one that no reasonable decision maker could reach. It was noted too that unacceptability to the President is subjective.
“The only way the public will know whether these standards have been met is if reasons are provided for the rejection of persons named on a list submitted to the President … Once a person named on the list submitted by the Leader of the Opposition is not objectively unfit and improper for appointment to the office of Chairman of the Elections Commission and not unacceptable to the President, that discretion being exercised pursuant to public law principles, that person may be selected for appointment,” it said.
It also argued that provision for “fit and proper” persons expands the nomination pool beyond that of judges, former judges and persons eligible to be judges.
“In essence, “fit and proper” can only apply to persons outside of the judges/former judges and persons eligible to be judges,” it submitted, while adding that a history of amendments of Article 161 (2) indicates an expansion of the relevant categories of persons to be considered which previously stated that the pool of persons would be selected “from among persons who hold or have held office as a judge of a court….”
The GBA further stated that there should be no other inference as to the meaning of “fit and proper,” including that the person must have judge-like qualities (which President Granger has stressed).
The GBA also stated that the grammatical subject of Article 161(2) is the person being appointed to the office and not the list submitted to the president. “Each person must be considered to determine whether they are fit and proper for that office and whether they are not unacceptable to the President. Since the list submitted by the Leader of the Opposition is not the subject of the provision, the entire list can only be rejected if each person named on the list is neither, objectively, a fit and proper person for appointment to the office of Chairman of the Elections Commission nor, subjectively, acceptable to the President,” it said.
“Since the grammatical subject of the provision is not the list but the person for appointment, each person must be found to be unfit and improper for appointment as well as unacceptable for the entire list to be rendered unacceptable,” it added, while arguing that the rejection of the entire list would be difficult to lawfully justify unless it is expressly stated that each of the persons named on the list is specifically and individually rejected. It pointed out that the situation may arise where one or more persons on the list are found to be unacceptable and it said whether the list must contain six acceptable names submitted by the Leader of Opposition to the President is problematic. “…on the clear interpretation of the Constitution it appears the President is entitled to six persons from whom he must choose and if one person is unacceptable to him he is entitled to have that person replaced by an acceptable person,” it added, before noting that this relates to the need for reasons to be provided for any rejection by the President.
Additionally, the GBA argued that there ought not to be any second or subsequent lists. “There may be amendments to the original list but it remains one list; the Constitution does not contemplate multiple lists, only a single list is mentioned, the implication of any other interpretation would not be appropriate,” it said.
Following a meeting earlier in the year, Granger had sent Jagdeo a definition of the “Qualities of the Chairman of the Guyana Elections Commission.” It said the candidate should be a person who is qualified to be a High Court judge and should have been an attorney for a minimum of seven years. It said that in the absence of candidates who do not meet these qualifications, “any other fit and proper person” should be appointed. In this regard, the statement specifies that such persons should have the following characteristics:
“a) that person is deemed to have wide electoral knowledge, capable of handling electoral matters because he or she is qualified to exercise unlimited jurisdiction in civil matter
b) That person will discharge his or her functions without fear or favour, that is he or she will not allow any person or organisation to influence him or her to compromise his or her neutrality;
c) That person will discharge his or her functions neutrally, between the two opposing parties as he or she would have done in court between two opposing litigants;
d) That person will not be an activist in any form (gender, racial, religious etc
e) That person should not have any political affiliation or should not belong to any political party in any form, apparent or hidden;
f) That person should have a general character of honesty, integrity, faithfulness and diligence in the discharge of his or her duty as chairman.”
In January, Granger rejected the first list submitted by Jagdeo, describing it as unacceptable. That list comprised Lawrence Latchmansingh, Rhyaan Shah, James Rose, Norman McLean, Ramesh Dookhoo and Christopher Ram, none of whom are judges. Granger last month rejected a second list comprising former appellate judge B S Roy, former High Court judge William Ramlal, former magistrate and now practising attorney Oneidge Walrond-Allicock, attorneys Kashir Khan and Nadia Sagar and former Guyana Defence Force Captain and businessman Gerry Gouveia. It has since been agreed that Jagdeo will submit a third.
The attorneys for Gaskin, Jagdeo and Attorney-General Basil Williams SC have already laid over written submissions to the court. Jagdeo and Williams are listed as the respondents in the proceedings.
The matter is set to continue today.
