President David Granger yesterday said that he will continue to act in accordance with his “perception” of the Constitution in his search for a person to hold the post of chairman of the Guyana Elections Commission (Gecom).
Acting Chief Justice (CJ) Roxane George SC in a landmark ruling on Monday agreed with the arguments of lawyers representing both the Leader of the Opposition and the Guyana Bar Association (GBA) that the appointed person did not have to be judge, former judge or someone eligible to be a judge. She told the court during her 45-minute oral ruling that persons falling into those categories in addition to those who are “fit and proper” are equally qualified to hold the post of Gecom Chair. She would later state that while there is no requirement for the persons nominated to have judge-like qualities, they should have integrity, honesty and impartiality, which are all akin to the qualities that a judge should possess. The President and his team had been emphasising that the ideal candidate should be a judge or someone eligible to be a judge.
A written version of the ruling is not yet available and has led to each party in the case in some instances giving differing views on what was said.
Speaking yesterday at State House shortly after swearing in four High Court judges and an appellate judge, Granger told reporters that the CJ gave the ruling based on her perception of the law.
“I will continue to act in accordance with my perception of the constitution. That is to say I will not appoint somebody who I do not consider fit and proper”, he said.
During the ruling, the CJ said that the president should state reasons for rejecting any candidate and also that if the president finds one or more of the nominees unacceptable, it does not disqualify the entire list. So far Granger has rejected two lists comprising a total of 12 persons. He has since asked Opposition Leader Bharrat Jagdeo to submit a third one.
Asked if he would give reasons as to why he has rejected the two lists which comprise 12 names, Granger said “If you can show me the Article of the Constitution which requires me to give reasons I will comply with the constitution but I will not do what the constitution does not require me to do”.
On the issue of the need for priority to be placed on a judicial person to hold that post, he said “I do not believe that anything that the Honourable Chief Justice said has diminished my regard for the word and spirit of the Constitution. I do believe that as I said here the person must be independent…impartial and I am looking for that independence and impartiality”.
Article 161(2) states, “Subject to the provisions of paragraph (4), 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 non-governmental 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.”
Stalemate
Concerns have been publically expressed over the stalemate.
Meanwhile, Attorney General Basil Williams SC, told reporters yesterday that Jagdeo is to be blamed for the current state of affairs since he has failed to deliver an acceptable list even after being provided with guidelines.
“We place blame in the Leader of the Opposition for failure to comply with the constitutional requirement to supply a list of six persons…he can’t supply a list of five or two and conform with the constitutional requirements so the first list…was one that was rejected for that fact and the second list also”, he said before reminding that after the rejection of the first list, the president put out a list of criteria but Jagdeo did not conform with it, based on the second list that was submitted. He said that it is clear from Jagdeo’s conduct that he hasn’t even accepted the guidelines.
Williams told reporters that government will accept the CJ’s ruling which confirms that the president has to determine who is “fit and proper” and whether the list is acceptable or not.
Asked if the third list has no acceptable person if he will advise that the president appoint someone of his own choosing, Williams responded “the president deals with what he has to do in his own deliberate judgement. Under Article 111 of the Constitution, when the president has to make a decision which is not a recommendation…he does so in his own deliberate judgement”.
Asked in his judgement, what could be the best course if the third list doesn’t have any acceptable person, Williams said the CJ in her ruling also said that the president was not obliged to go to a second list, that he could have gone ahead and made an appointment under the proviso in the constitution under Article 161 (2).
Williams insisted that the President has been acting properly and judiciously. “He didn’t have to go to a second list but right now he is inviting a third list so we are trying to work with the Leader of the Opposition to supply a list of six persons… that are acceptable… The Chief Justice said that the President could have gone ahead and made an appointment but the President has been trying to work with the Leader of the Opposition to arrive at a candidate that is universally acceptable,” he said.
The Ministry of the Presidency and the Opposition Leader’s office have said that the findings on the interpretation of the Constitution vindicate their respective positions on the selection of a Gecom Chair.
Jagdeo has said that the written decision would determine his next course of action, which could include supporting an appeal by the applicant in the matter, Marcel Gaskin of one aspect of the judgment.
Gaskin, a businessman objected to Justice George’s apparent position with respect to the proviso to Article 161(2), which suggested that the president could proceed with an appointment outside of the names submitted by the opposition leader if he determines that all the nominees are unacceptable as fit and proper persons for appointment.
Gaskin had approached the court in March after the first list of six nominees submitted by Jagdeo was rejected as unacceptable by President Granger.
Gecom has been without a Chairman since February.
Gaskin had sought declarations on whether the list of nominees to be submitted to the President by the Leader of the Opposi-tion, under Article 161(2), must include a judge, a former judge or a person qualified as a judge; 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.
