The legality of President David Granger’s decision to proceed with the unilateral appointment of the Chairman of the Guyana Elections Commission (Gecom) is being questioned and the Bar Association of Guyana yesterday said his reasons for rejecting the 18 nominees submitted by the Opposition Leader should be publicly stated to defend his actions.
“The Bar Council expects that reasons for rejecting the eighteen persons leading to the unilateral appointment of Justice James Patterson will be provided forthwith to avoid the necessity of further litigation on this issue on its part,” the Bar Council of the Bar Association of Guyana said in a statement issued yesterday.
On Thursday night, Patterson, 84, was sworn in as the new Gecom Chair-man, just hours after being asked to take up the appointment by the president, who rejected three lists submitted by Opposi-tion Leader Bharrat Jagdeo.
Granger, who said the lists submitted were unacceptable, selected Patterson under the proviso to Article 161 (2) of the Constitution, which allows him to unilaterally appoint a judge, former judge or a person qualified to be a judge, if the Opposition Leader fails to submit a list as provided for in the law.
Jagdeo has since accus-ed the president of acting in violation of the Consti-tution and announced that the opposition would adopt a stance of non-cooperation with the government.
Saying it was “deeply concerned” at the unilateral appointment of Justice Patterson yesterday, the Bar Council noted that no president from either of the major parties has made such a decision in more than 25 years and warned of the potential consequences.
“The unilateral appointment of the Chairman can lead to a loss of public confidence in the electoral process which is entirely undesirable having regard to Guyana’s experience in past elections,” it said.
As a result, the Bar Council stated that it expects that in keeping with the ruling of Chief Justice (ag) Roxane George SC on the application for an interpretation of Article 161 (2) by Marcel Gaskin, President Granger will provide reasons for the rejection of the 18 nominees.
Justice George had found that the president must give reasons for rejecting each nominee in order to apply the proviso to article 161(2). “While the President is immune from suit, his decisions and actions are not. Thus, whether in the exercise of his discretion there has been compliance with the Constitution is justiciable,” Justice George stated in her ruling.
According to the Bar Council, the president’s power to make a unilateral appointment to the office is limited by the constitution only to the situation where the Opposition Leader fails to submit a list “as provided for” by the Constitution.
“It should be obvious therefore that Guyanese cannot satisfy themselves that there is an objective and lawful basis for the President’s unilateral appointment of Justice James Patterson to that office unless publicly stated reasons for the rejection of the eighteen persons found by the President to be unfit to hold the office of Chairman of the Elections Commission are provided. Only if clear and detailed reasons are provided which show cause why each of the eighteen rejected persons is unacceptable to the President for appointment to the office of Chairman of the Elections Commission would it be possible to establish that the Leader of the Opposition failed to submit a list as provided for by the Constitution,” it said, while noting that the ruling of the Chief Justice that reasons are required is part of the law of Guyana until such time as it may be set aside by a higher Court. “The Constitution must therefore be read in light of that decision,” it added.
On August 25, Jagdeo submitted a third list comprising Joe Singh, a retired Guyana Defence Force Major General who previously served as Gecom Chair-man; former long-serving magistrate Krisndat Persaud; attorneys Teni Housty and Sanjeev Datadin; pilot and biodiversity advocate Annette Arjoon-Martins; and Adventist pastor and agriculturalist Onesi La Fleur. Singh was highly favoured given his experience.
Asked last Thursday if he planned to give reasons why he rejected the third list, Granger responded, “I have searched the constitution and the only reason I found …is that I am not obliged to appoint anybody who is not fit and proper.” He dismissed suggestions that the non-disclosure of reasons is not in keeping with the democratic principles. “I believe that it is in accordance with the Constitution,” he stressed.
Granger added that after scrutinizing the third list, he realized that it was unacceptable and he began a search for his own nominee in keeping with the constitution. “I realized at that stage that after the submission of three lists that there was an intention on the part of the Leader of the Opposition to submit a list that is not going to be acceptable.”
Granger said that he then decided that it would be in the public’s interest to resort to the proviso to Article 161 (2).
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.”
Meanwhile, the Bar Council also noted a statement on Friday by governing coalition partner the Alliance For Change (AFC), which said each of the lists supplied to the President fell short of what was required by the Constitution. “Unlike the Bar Council, the Alliance For Change did not seek to provide assistance to the Chief Justice by providing legal submissions in that regard so that the precise legal reason each of the lists fell short of what was required by the Constitution could be publicly known,” the Bar Council statement said, calling it regrettable.
The AFC in its statement said that it had accepted President Granger’s unilateral selection of Patterson, while maintaining that it was necessary to avert a “looming constitutional crisis.”
“The party recognizes that according to the Constitution the consultation process was purely between the President and the Leader of the Opposition. The AFC played no part in the selection process,” the AFC said. “It is regrettable that after three protracted rounds of consultations and submissions each of the three lists fell short of the requirements of the constitution. The party recognizes that the necessity had arisen for the President not to further delay the appointment of a Chairman. The appointment in the President’s own deliberate judgement has averted a looming constitutional crisis,” it added.
Justice Patterson was sworn in shortly after 8.30 pm on Thursday at a hastily organized ceremony. Apart from the media and the president’s staff, Minister of State Joseph Harmon was the only person present. The swearing in ceremony occurred two hours after the president informed Jagdeo of his choice at the meeting. It is believed that the swearing in was rushed to avoid a legal challenge.
