President rejects GECOM list

-stresses that no candidate was judge even though constitution also caters for `fit and proper’ person

President David Granger yesterday announced that he has rejected a list of six names provided to him by Opposition Leader Bharrat Jagdeo from which one was to be extracted for the position of Chairman of the Guyana Elections Commission (GECOM).

Former Attorney General and PPP executive Anil Nandlall condemned the President’s decision saying that not only was the rejection of a pool from the opposition unprecedented but that he believes it is the President’s signal that he will unilaterally choose a Chairman. 

Reading excerpts from Article 162 of the Constitution, which speaks to the selection of a GECOM Chairman, the President stressed that none of the candidates was a former judge or someone eligible to be appointed as a judge.

“Four times in one article it mentions that word, judge. So the only thing about the list is that it comprises six names,” the President told a media brunch, he hosted yesterday at State House, Georgetown.

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.”

“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,” it adds.

Last month, Jagdeo submitted the names of Chartered Accountant and lawyer Christopher Ram; business executive Ramesh Dookhoo; author, Indian rights activist and columnist Ryhaan Shah; historian Professor James Rose; governance and peace practitioner Lawrence Lachmansingh and former Chief of Staff of the Guyana Defence Force and mining executive Norman McLean, for the President’s consideration.

However, Granger said yesterday that he would not accept the nominees. “The list that was sent to me was unacceptable,” the President declared as he went into reading Article 161 (2) to justify his stance.

Nandlall swiftly dispatched a statement disagreeing with the President’s interpretation of that aspect of the law.

“I am not surprised by President Granger’s manoeuvrings. Hence, the reason why I wrote a detailed article on this matter just one week ago. The President is playing a dangerous game… I believe these machinations will continue until the President conjures-up an interpretation of the Constitution which permits him to unilaterally appoint a Chairman of GECOM,” Nandlall posited.

He argued that  “While the Constitution confers a discretionary power on the President to accept or reject any list, I hope that the President has been advised that no discretionary power, irrespective of how untrammeled it may appear to be ex-facie, is absolute. The law dictates that every discretionary power must be exercised within certain parameters”.

“Over the years, the Judiciary has been swift in rejecting the notion that unfettered discretion exists in law and has condignly rejected any unreasonable, capricious, or whimsical exercise of a discretionary power. Similarly, where the exercise of a discretionary power is irrational, done in bad faith and/or influenced by improper motives and/or irrelevant considerations, the courts have rejected it as an unlawful exercise and an abuse of that discretionary power,” he added.

The PPP Shadow Minister of Legal Affairs, believes that the President’s reason for not selecting from the list was “wholly untenable” as he also feels that all six persons have met the criteria set out for the GECOM Chairman position.

“It is clear that Article 161(2) of the Constitution contemplates two categories of persons. Firstly, a High Court judge or an Appellate Court judge, a former High Court or an Appellate Court judge or a person qualified to be a High Court or an Appellate Court judge. Secondly, or (disjunctive), any `fit and proper’ person. However, from whichever category the persons come, they must be acceptable to the President,” Nandlall wrote.

He also made reference to past Chairmen of GECOM and their qualifications.

“Historically, of all the persons who were appointed Chairman of GECOM, only Mr. Doodnauth Singh SC appeared to have satisfied category one qualifications; although it could be argued that he would have satisfied the “fit and proper” requirement (category two qualifications), as well. All the other persons: Rudy Collins, Edward Hopkinson, Joseph Singh and Dr. Steve Surujbally lacked legal qualifications and therefore, were all qualified under the “fit and proper” requirement,” Nandlall argued.

The new chairman would replace Dr Surujbally who last September tendered his resignation after being in the post for 15 years and presiding over the 2006, 2011 and 2015 general elections and the 2016 local government elections. The PPP had held several protests and called for Surujbally to resign, claiming the May 2015 elections were rigged in favour of the APNU+AFC coalition government.  It has lodged an election petition with the court.

Surujbally had formally indicated to the President his intention to resign from GECOM with effect from November 30th, 2016.

 

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