Declaring the process used to unilaterally appoint Justice (Ret’d) James Patterson as Chairman of the Guyana Elections Commission (GECOM) to be “flawed” and unconstitutional, the Caribbean Court of Justice (CCJ) yesterday said President David Granger had no authority to introduce new eligibility requirements and should have given reasons for rejecting the 18 candidates submitted to him by Opposition Leader Bharrat Jagdeo.
“…In view of the unfortunate process that was followed, the imposition on the Leader of the Opposition of criteria that were not sanctioned by the Constitution, and the absence of cogent reasons for deeming unacceptable the candidates and lists provided, the Court concluded that the process that was followed in the appointment of Justice Patterson was flawed and in breach of Article 161(2),” President of the Caribbean Court of Justice, Justice Adrian Saunders said while reading a summary of the court’s decision during a video conference with attorneys, who were gathered at the Guyana Court of Appeal in Kingston and at other jurisdictions in the Caribbean.
Justice Saunders, who was seated on the bench of the Trinidad-based court, pointed out that a review of events between November 22nd 2016 and November 19th, 2017, determined that the President was “not entitled to lay down, as a precondition to considering a nominee, eligibility requirements that were additional to or at variance with those prescribed by the Constitution.”
This eagerly-awaited decision was one of two delivered by the court yesterday. The other concerned the controversial December 21 no confidence vote, which was upheld by the court. The CCJ is Guyana’s final appellate court and as a result its decisions are final.
Justice Saunders, after reading both judgments, set aside Monday for the parties to make submissions on the orders to be given by the court as well as to iron out court costs.
In responding to a query from Belizean Senior Counsel Eamon Courtenay, who was part of the government’s legal team, Justice Saunders said that in the absence of an agreement on the GECOM case, the court will make its own order.
“If between now and the 24th there is no concurrence on that issue, then we will have to find a way… I am hoping on the 24th you will come back and tell us that all sides have agreed on these consequences… and the court will order accordingly,” he said.
“In case of [the] GECOM chairperson… we would like to hear from you, particularly in relation to that, on what formal orders you might agree on, if you can agree, the court should make and we will take it from there,” he reiterated.
PPP member Zulfikar Mustapha had initiated the challenge to the appointment, while contending, among other things, that the president had no power to make a unilateral appointment once a list of six names had been submitted to him.
Guyana’s High Court ruled that the President had the power, under Article 161(2) of the Constitution, to reject the list submitted by the Opposition Leader if it is unacceptable to him and to resort to the proviso of that article and choose a person as Chairman of GECOM who is, was, or is qualified to be appointed as a judge in Guyana or the Commonwealth.
This decision was then upheld by the Guyana Court of Appeal and the case then moved to the CCJ.
In explaining the meaning of Article 161 (2), which provides for the appointment of a Chairman based on a consensual process in which a list of six persons, “not unacceptable to the President,” is submitted by the Opposition Leader, the court said that looking at drafting history would be helpful.
Act 15 of 1995, which amended Article 161, modified the President’s function in the appointment process and carved out a role for the Leader of the Opposition. “The finality of the President’s discretion to choose the appointee was, however, preserved,” the judgment explained, before making reference the “Carter Formula.” “This formula was enshrined in the 1995 Act, but the operation of that Act came to an end by virtue of a clause limiting its operation up to a specified date. This meant that the original provision for unilateral appointment by the President, as contained in the 1980 Constitution, was revived after that date,” the judgement said, while noting that the issue did not end there.
It was pointed out that a Constitutional Reform Commission, which was established in January 1999, recommended that “The Chairman of the [Electoral] Com-mission should be full-time and should be selected by a consensual process as provided for in the Constitution (Amendment) Act 1995 (No. 15/1995).” The recommendation was adopted by the National Assembly and accordingly incorporated into the Constitution (Amendment) Act No. 2 of 2000 and reflected the provisions of the 1995 Act , with only a few minor changes in the language.
“We agree, too, that the evolution of Article 161(2) has been characterised by a significant and deliberate shift from exclusivity and unilateralism, on the part of the President, to inclusion and consensualism. This element of inclusion secures the participation of the Leader of the Opposition in the process by which the Elections Commission Chairman is selected and appointed,” the CCJ found.
The court went on to look at the Article in detail before adding that the names of six persons who satisfy any of the criteria listed therein must be submitted to the President by the Leader of the Opposition. Thereafter, the President must then appoint one of the six nominees as Chairman.
The court reminded that the Article states that the listed persons must be “not unacceptable” to the President and that, in arriving at a list of six persons, the Leader of the Opposition is obliged to meaningfully consult with any non-governmental political parties that may be represented in the National Assembly.
‘Most sensible approach’
According to the judgment, while the requirement for “meaningful consultation” is clear and needs little elaboration, what is unclear is the process that should be followed to “accommodate the spirit of consensus” between the President and Opposition Leader.
“The Constitution envisages that this process will culminate in a list of six names being presented to the President, none of whom is unacceptable to the President. This ultimately gives the President the opportunity to select any one of those six persons as Chairman,” the judgement said.
Wirth regards to how these two leaders should act in this regard, the court said, “We are of the view that the most sensible approach is that before a list is submitted, the Leader of the Opposition and the President must communicate with each other in good faith on, and perhaps even meet to discuss, eligible candidates for the position of Chairman.” To the court’s mind, the aim of such a discussion is to agree that the six persons are “fit” in keeping with the stated eligibility requirements. “In this regard, the Constitution anticipates that the Leader of the Opposition and the President will conduct themselves in a reasonable and responsible manner, eschew partisanship and seek the best interests of the Republic and the Guyanese people,” it added.
In the court’s view, the employment of the double negative “not unacceptable” signals that “an onus is placed on the President not to find a nominee unacceptable merely because the nominee is not a choice the President would have himself made.” Finding a nominee unacceptable must be for some good reason on objective grounds as doing otherwise will “would frustrate the proper working of the Constitution, defeat the intention behind the amendment to Article 161(2) and pave the way for unilateral presidential appointment,” it observed.
According to the judgement, once the two leaders agree on a list of names “not unacceptable” to the president, it must then be formally submitted by the Leader of the Opposition. Thereafter, the president must select the Chairman.
“This approach gives the President a role in the identification of the six names, but it obviates the possibility that, after the formal presentation of the list, the President could suggest that one or more of the names, or indeed the entire list, is ‘unacceptable,’” the court said.
Making it clear that its judgment is not intended in the slightest degree “to cast aspersions on the competence and suitability of Justice Patterson for the position of Chairman of GECOM” or that the president didn’t act in good faith, the court said for the reasons outlined “we have no choice to conclude that the process… was flawed.”
Included in the decision was the separate concurring judgments of Justices Winston Anderson and Maureen Rajnauth-Lee.
For his part, Justice Anderson agreed that the process used to appoint Justice Patterson was “fatally flawed” and did not comport with constitutional requirements. He made reference to the history and drafting of Article 161 (2), which clearly speaks to meaningful consultation, dialogue and compromise between the two leaders.
Further, he points out, “The President obviously retains the overriding power to make the determination as to who will be appointed because, assuming their eligibility, it is the responsibility of the Leader of the Opposition to ensure that the six persons on the list submitted to the President meets with the President’s approval. The exercise must, of course, be conducted in good faith, supported by competent advice on both sides, and with the requisite level of commitment to the Republic inherent in the competence to make such an important national appointment.”
He noted that this Article required the finalising of the list of eligible nominees through a consultation process which must be completed before the list formally reaches the President.
He restrained himself from stating definitively whether the president has to give reasons for his rejection.
“Specifically, I am unwilling, certainly at this stage, to impute a requirement in Article 161(2) to give reasons, and of particularising the timing, nature and scope of the reasons to be given, for decisions or positions taken pursuant to the required process of consultation,” he said, while pointing out that even lower courts were inconclusive on this requirement.
Justice Rajnauth-Lee also considered the historical evolution of Article 161 (2) and the President’s duty to give reasons. She too found that Article 161(2) contemplates a consensual process whereby opposition political parties in Guyana will participate in a meaningful way in the selection of the Chairman of the Elections Commission.
“Further, given the modern trend towards openness, fairness and transparency, and the historical background of electoral reform in Guyana and the amendments to Article 161(2) of the Constitution, there was a duty on the President to give reasons for rejecting the list submitted by the Leader of the Opposition,” she said, according to the summary, before adding that the giving of reasons by the President will ensure “transparency and accountability to the people, avoid unilateralism and arbitrariness, and engender public trust and confidence in the Elections Commission.”
