Following President David Granger’s rejection of his list of nominees to head the Guyana Elections Commission (Gecom), Opposition Leader Bharrat Jagdeo yesterday requested clarity on his interpretation of the criteria for the office holder and proposed an urgent meeting to resolve any differences they may have on the issue.
Jagdeo’s party, the opposition People’s Progressive Party (PPP), said yesterday in a strongly-worded statement that it suspects that Granger is laying the foundation for the “unilateral appointment” of a Gecom Chairperson, which it fears is part of a plan to rig the next elections. It argued that such an appointment would be “unconstitutional” and would “compromise the integrity of the electoral machinery.” As a result, it urged both civil society and the international community to speak out against what it called an intended assault on the country’s democracy.
In contrast to the strong language of the PPP statement, Jagdeo, by way of a letter sent to Granger yesterday, only acknowledged a difference in interpretation of the constitutional provisions on the criteria for the nominees and proposed a meeting to resolve it. “…I hereby request that Your Excellency clarify what you interpret the qualifications are of the persons to whom Article 161(2) of the Constitution refers,” Jagdeo wrote, referring to a correspondence he had received from Granger on the rejection of his nominees. “I am of the considered view that an urgent meeting will immeasurably assist in reconciling any differences of opinion which may exist on this issue,” he added.
A statement issued by the Ministry of the Presidency last evening said the president had received Jagdeo’s letter and would respond in due course.
Following the resignation of longstanding Gecom Chairman Dr Steve Surujbally, which took effect on November 30th last, Jagdeo submitted the names of chartered accountant and lawyer Christopher Ram; business executive Ramesh Dookhoo; author and Indian rights activist Ryhaan Shah; historian Professor James Rose; governance and peace practitioner Lawrence Lachmansingh and former Chief of Staff of the Guyana Defence Force and mining company executive Norman McLean as the nominees for the president’s consideration.
Jagdeo, in his letter yesterday, noted the correspondence from Granger, dated January 5th, 2017, in which he opined that the six nominees that were submitted “do not seem to conform to the requirements of… Article 161(2)” of the Constitution.
Article 161 (2) of the Constitution 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.”
The constitution also provides 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.
Jagdeo also referenced comments made by Granger at a function at State House on Sunday on the reason for his rejection of the list.
It was there that Granger publicly made his position known that the list was unacceptable based on the constitution. “Four times in one article it mentions that word, judge. So the only thing about the list is that it comprises six names,” he said, referring to Jagdeo’s nominees.
“I have also noted certain comments attributed to Your Excellency by the media made at a function held at State House on the 8th January, 2017, which tend to suggest that you apprehend Article 161(2) to require only persons who are Judges, qualified to be Judges, or former Judges of, either a court having unlimited jurisdiction in civil and criminal matter or, a court having jurisdiction in appeals from any such court,” Jagdeo wrote. “If those media reports accurately conveyed your views, then I am obliged to inform Your Excellency that my interpretation of Article 161(2) is different, in so far as, it also provides for, in addition to the category of persons to whom you have referred, “or any other fit and proper person,”” he added.
In its statement yesterday, the PPP voiced its concern at Granger’s rejection of the six nominees, while adding that his reasoning is “bewildering.”
“If the media reports accurately capture the sentiments expressed by the President, then the President’s interpretation of the Constitution is nothing short of a perversion of both the language and the spirit of Article 161(2). It cannot be justified in language, logic, law or, by the antecedent holders of the Office of Chairman of the Guyana Elections Commission,” it further said.
The PPP stressed that Article 161(2) does not limit the nominees to a judge, former judge or a person qualified to be a judge as it also stipulates “or any other fit and proper person.”
The party accused Granger of ignoring this part of Article 161(2) on Sunday, saying that he “glossed over the vital seven words” while greatly emphasising other portions of the Article.
“We hope that it is not the view of the President that because he selectively de-emphasises words in the Constitution, those words would lose their efficacy, it noted.
It said too that the Interpretation and General Clauses Act provides that the words ““or”, “other” and “otherwise” shall be construed disjunctively and not as implying similarity, unless the expression “similar”, or some equivalent expression, is added.”” As a result, it argues that the phrase “or any other fit and proper person” allows for persons without legal qualifications and makes them as eligible as a judge, a former judge, or person qualified to be a judge.
Had no legal qualifications
Granger himself, the PPP also pointed out, had allowed himself to be submitted as a nominee by then Opposition Leader Desmond Hoyte SC in 2000, although he did not possess legal qualifications.
The PPP reminded that since 1992, when the law was amended, all the holders of the office of the Gecom Chairman except Doodnauth Singh SC had no legal qualifications. “All the others, were deemed qualified under “the fit and proper person” category. These were Rudy Collins, a career diplomat; Edward Hopkinson, a geologist; Joe Singh, a retired army Chief of Staff; and Surujbally, a veterinary doctor.
Significantly, the party said, Singh and Surujbally were appointed from lists submitted by then Opposition Leader Hoyte. “Additionally, the following persons who do not possess legal qualifications were on lists submitted by Mr. Hoyte to the President for appointment as Chairman of the Guyana Elections Commission: Edward Hopkinson, Charles Liburd, Joe Singh, Dennis Craig, David Granger, Gem Fletcher and Harold Davis. It is to be noted that the last five names along with Justice Rudolph Harper, were the names submitted by Mr. Hoyte, to President Jagdeo in 2000. Only Mr. Harper possessed legal qualifications on that list. Is President Granger now saying that Mr. Hoyte SC, violated the Constitution? Is he saying that he lent his name to a violation of the Constitution when he accepted his name to be placed on that list since he does not have any legal qualifications?” it questioned.
Meanwhile, according to the Ministry of the Presidency statement released yesterday, Attorney General Basil Williams SC has advised that the determination of what is “fit and proper” is at the discretion of the Head of State and that every person submitted on the list presented by the Leader of the Opposition should meet that requirement.
“All six persons are required to be acceptable to the President. Therefore, if you bring in three of those persons, [who] are not in the range, you are actually reducing the options of the President. So it is beholden on the Leader of the Opposition to always provide a list of six acceptable persons or as they say six persons not unacceptable to the President. He is the decision maker. The President is doing nothing wrong. In fact he has invited the Leader of the Opposition to send another list and he can do that several times until the Leader of the Opposition gets it right and he has to get it right, failing which the President will be forced to make an appointment. Of course at all material times he acts in his own deliberate judgement. So it’s entirely the President’s judgement,” he is quoted as saying. “It is entirely at the discretion of the President. The Constitution gives him that power to determine, who is a fit and proper person. The Leader of the Opposition ab initio (in the beginning) really has to address his mind to what the Constitution requires,” he added.
Williams added that the president believes that the constitution should be followed thoroughly in the selection of a Chairman for such an important post and if the need arises for several lists to be submitted by the Leader of the Opposition in keeping with the law, then this should be done.
Loss of confidence
The PPP noted that the formula for the appointment of the Gecom head was conceived by President Jimmy Carter and was designed and intended to achieve consensus between the government and the opposition. “This formula was constitutionalized unanimously in 1995 in the National Assembly. It was retained by the Constitutional Reform Commission 1999-2001. The Speeches in the National Assembly and the notes of the Constitutional Reform Commission lauded the formula for its consensual characteristics,” it said.
The party argued that if the president is permitted to unilaterally appoint a chairman of his own choosing, then it will fundamentally alter the vital balance of Gecom’s composition, resulting in a tremendous loss of confidence in an already publicly impugned elections commission.
It also pointed out that while Jagdeo was not constitutionally-obliged to hold public consultations before selecting a list to give to the president, he nonetheless did and as a result it questioned if all the organisations consulted had misinterpreted the constitution as regards the qualification. “It is these consultations which produced the list submitted by the Leader of the Opposition to the President. A rejection of this list is therefore a rejection of the voices of all these organizations. Is the President saying that all these organizations have interpreted the Constitution wrongly, and only his interpretation is correct?” it asked.
Noting that Granger is the first president to ever reject the list of nominees submitted by the opposition leader for the post of Gecom Chair, the PPP called it significant and voiced its suspicion that it is the beginning of “an elaborate plan to rig the next elections.” “We feel that the President is laying the foundation for the unilateral appointment of a Chairman of Gecom of his own choosing. Such an appointment will not only be unconstitutional but will certainly compromise the integrity of the electoral machinery,” it said, while adding that its fears that the PNC’s holding the seat of government would see a threat to democracy are becoming a reality. “We call upon the diplomatic community, civil society organisations, the Guyana Bar Association, the Guyana Association of Women Lawyers, the Berbice Bar Association, the Guyana Human Rights Association, the Red Thread, the labour movement, the religious organisations, the Private Sector Commission and indeed, every right thinking Guyanese to raise their voice against this self- serving, twisted and grossly erroneous interpretation of our constitution and to condemn this intended assault on our democracy,” it added.