Acting Chief Justice Roxane George SC will on July 17 deliver her decision in a court action which seeks clarity on the President’s criteria for the selection of a Guyana Elections Commission (GECOM) Chairperson, including whether a judge must be among the nominees for the post.
The action which was filed on behalf of businessman Marcel Gaskin was heard again on Tuesday and after asking a number of questions and hearing oral submissions from all the parties involved, the date for judgement was announced.
Gaskin had approached the court in March seeking a declaratory order on whether the list of nominees to be submitted to the President by the Leader of the Opposition, under Article 161 (2) of the Constitution, must include a judge, a former judge or a person qualified as a judge.
His move to court came amidst a stalemate after the first list of nominees 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 also sought declarations on whether the President is required under the Constitution 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 as unacceptable.
Jagdeo and Attorney-General Basil Williams SC are listed as the respondents in the proceedings while the Guyana Bar Association (GBA) was recently granted permission to appear as a friend of the court and has also laid over its written submissions to the court.
Gaskin’s attorney Glenn Hanoman told Stabroek News in an invited comment yesterday that while Tuesday was set aside for report, the judge asked a number of questions and these were answered by all the parties involved.
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:
- “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;
- 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;
- 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;
- That person will not be an activist in any form (gender, racial, religious etc
- That person should not have any political affiliation or should not belong to any political party in any form, apparent or hidden;
- That person should have a general character of honesty, integrity, faithfulness and diligence in the discharge of his or her duty as chairman.”
The GBA in its submission said that the President must give reasons if he decides to reject any nominee submitted for the post while pointing out 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 contended.
Gaskin, in his affidavit in support of his application, said he had been advised that the list submitted by the Leader of the Opposition to the President met the requirements of Article 161 (2).
Jagdeo’s attorney, Anil Nandlall, in his submissions, has argued that in applying certain principles to Article 161 (2), it is clear that it is not within the President’s power to determine who “fit and proper person” is.
He said the President’s discretion lies in determining whether a person is acceptable or not and that in exercising this power, the president is obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily.
