Dear Editor,
This letter is a commentary on three national issues, namely:-
i) The appointment of the Solicitor-General
ii) Tenure of office of members of the Guyana Elections Commission and
iii) Designation of the minister responsible for Tourism.
Appointment of the Solicitor General
I refer to correspondence published recently in your newspaper concerning the appointment of the Solicitor General. In response to this correspondence, the Attorney-General correctly informed your readers that the appointment is the prerogative of the President by virtue of Article 205 of Guyana’s Constitution.
It must be mentioned, however, for the benefit of your readers that in cases where the appointment involves the holder of an office to which the Judicial Service Commission makes the appointment under the constitution, the President must consult with the commission although the President makes the appointment ultimately in his discretion.
The correspondence published in your newspaper indicated that at that time, the membership of the Judicial Service Commission had been depleted leaving only the Chancellor (ag) and the Chief Justice (ag) the two ex officio members of that body. In carrying out its functions under the constitution, the commission functions with three members as its quorum for a meeting – ie a majority of the membership of the commission.
Some persons may argue that Article 205 (1) grants the President an unfettered discretion to appoint. Article 205(1) must, however, be read together with Article 205(2) which states that before making appointments of persons holding offices other than offices to which the Article applies, the President shall consult with the appropriate commission. Article 205(3) identifies the offices to which Article 205 applies – namely, the Solicitor General, Permanent Secretary, Secretary to the Cabinet, Ambassador, High Commissioner, or other principal representative of Guyana.
In the present case, the appointee holds the substantive office of Registrar of the Supreme Court. This is not one of the above-mentioned offices. Accordingly, in order to conform with Article 205 (2), before appointing the Registrar to a constitutional office, the President must first consult with the appropriate commission, in this case, the Judicial Service Commission.
The correspondence published in your newspaper does not indicate whether the two remaining ex officio members of the Judicial Service Commission at that time, were consulted in order to comply with Article 205 of the constitution. I presume that the consultations were held with a sufficient number of the remaining members of the commission in order to comply with the constitutional requirement.
Tenure of members of the Guyana Elections Commission
The tenure of office of members of the Guyana Elections Commission has yet again surfaced with calls for the termination of the term of office of the current members of the commission. In a previous letter of December 30, 2011, published in your newspaper, I demonstrated for the benefit of your readers that the provision in the constitution which mandated the end of the tenure of office of members of Gecom three months after the announcement of the result of national elections should not have been repealed by legislation enacted in 2002 with the intention, presumably, of making the commission a permanent constitutional body.
I then expressed the opinion that the decision to repeal the provision in the constitution which mandated the end of the tenure of office of members of the commission three months after the declaration of the results of an election did not take account of the distinction to be drawn between the establishment of the commission as a permanent constitutional entity or instrumentality as distinct from the members of that body and their term of office.
The constitution should be suitably amended at the earliest available opportunity to re-enact the constitutional provision which existed prior to the constitutional amendment in 2002.
Appointment of minister responsible for Tourism
With the assumption of office of the government, Irfaan Ali was appointed as the Acting Minister responsible for Tourism together with his other responsibilities as the substantive minister. It is customary to assign ministers responsibility for subject areas during absences of ministerial colleagues for short periods on the business of the government.
Mr Irfaan Ali has been appointed temporarily as the Minister responsible for Tourism since the assumption of office of the government in November 2011 and referred to officially as the Acting Minister of Tourism. Because of the length of time Mr Ali has been functioning as the Acting Minister of Tourism, I am of the opinion that he should have been appointed as the substantive Minister responsible for Tourism and, in the event of a decision being taken by the President to assign responsibility for Tourism to another person substantively, the appropriate instruments can be issued to give effect to the change in ministerial responsibilities.
Yours faithfully,
Brynmor T I Pollard, SC
