Acting Chief Justice Roxane George SC yesterday deferred her expected judgement on questions about the President’s criteria for the selection of a Guyana Elections Com-mission (Gecom) Chair-person, including whether a judge must be among the nominees for the post.
Justice George adjourned the proceedings until June 16 in order to allow representatives of the Attorney General’s Chambers enough time to examine written submissions and to prepare to answer her questions.
Businessman Marcel Gaskin had approached the court in March seeking a declaratory order on whether the list of nominees to be submitted to the President by Leader of the Opposition, under Article 161 (2) of the Constitution, must include a judge, a former judge or a person qualify as a judge.
His move to court came amidst a stalemate after the first list of nominees submitted by Opposition Leader Bharrat Jagdeo was rejected as unacceptable by President David Granger, who has been arguing heavily in favour of a judge or a person with those qualifications to be Chairperson. (A second list was also rejected by Granger last Friday.)
Gaskin also sought declarations on whether the President is required under the Constitution to state reasons for deeming each of the six names on the list submitted as unacceptable; whether the President is obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as a fit and proper person for appointment; and whether a finding of fact by the President that any one or more persons is not a fit and proper person renders the entire list as unacceptable.
Jagdeo and Attorney-General Basil Williams SC are listed as the respondents in the proceedings.
Moments after the matter was called yesterday, Justice George announced that she would not be rendering a decision as she had some questions. She later noted that all submissions had been received and they were very comprehensive.
It was at this point that the court was informed by the representatives of the AG that they had not received any submissions.
Gaskin’s lawyer, Glenn Hanoman, then informed the court that he filed a brief reply earlier in the day and it was served on the AG’s Chambers. He noted that a staffer at the AG’s Chambers signed to show receipt and he produced a copy of the signed document.
State Counsel Leslyn Noble, after looking at the document, said that she recognised the signature but had not seen the reply prior to her arrival at court. After she also indicated that she did not receive a copy of the submissions made on behalf of Jagdeo, she was furnished with a copy.
Justice George again indicated that she had some questions and inquired whether Noble or the other State Counsel, Judy Stuart, who was present, were prepared to answer them. Noble told the court that she preferred to read the documents she now had in her possession and return at a later date.
The judge then proposed that the case be adjourned to June 16 although Hanoman asked whether some if not all the questions could have been answered given that the matter is “time sensitive” and that he was looking at the “ticking of the clock.”
The proposed date was later accepted.
“We have to give the judge enough time to come to a reasoned decision, so I never like to pressure judges to come to quick decision, lest it might be unreasonable. So I think every court needs sufficient time,” Hanoman later said.
In January, Granger rejected the first list submitted by Jagdeo, describing it as unacceptable. That list comprised Lawrence Latchmansingh, Rhyaan Shah, James Rose, Norman McLean, Ramesh Dookhoo and Christopher Ram, none of whom are judges.
Subsequently, a submission on the “Qualities of the Chairman of the Guyana Elections Com-mission” that was sent by Granger to Jagdeo said the candidate should be a person who is qualified to be a High Court judge and should have been an attorney for a minimum of seven years. It said that in the absence of candidates who do not meet these qualifications, “any other fit and proper person” should be appointed. In this regard, the statement specifies that such persons should have the following characteristics:
“a) that person is deemed to have wide electoral knowledge, capable of handling electoral matters because he or she is qualified to exercise unlimited jurisdiction in civil matter
- b) That person will discharge his or her functions without fear or favour, that is he or she will not allow any person or organisation to influence him or her to compromise his or her neutrality;
- c) That person will discharge his or her functions neutrally, between the two opposing parties as he or she would have done in court between two opposing litigants;
- d) That person will not be an activist in any form (gender, racial, religious etc
- e) That person should not have any political affiliation or should not belong to any political party in any form, apparent or hidden;
- f) That person should have a general character of honesty, integrity, faithfulness and diligence in the discharge of his or her duty as chairman.”
Jagdeo subsequently submitted a second list that comprised retired judges BS Roy and William Ramlal, attorneys Oneidge Walrond-Allicock, Nadia Sagar and Kashir Khan and businessman Gerry Gouveia. Last Friday, Granger announced that he has also rejected the second list and according to the Ministry of the Presidency Jagdeo must now submit a third list.
The President then invited Jagdeo to a meeting on the matter at State House on June 12 and Jagdeo has since said that he will accept the invitation.
Asked what may be the implications of the next court date coming after the planned meeting, Hanoman responded, “It doesn’t really matter. We [are] still proceeding …we still want an interpretation. Regardless of what happens politically, we need a legal interpretation.”
Asked what happens if the two leaders decide on something that is contrary to the court’s ruling, Hanoman said, “If they act in contravention of the court ruling, certain other legal steps will be taken.” He did not outline the possible legal steps. “Once this Chief Justice has given an interpretation, if the executive acts contrary to what the court has said, I suppose it will be bad for optics. I don’t know there is a legal avenue, to be quite frank, but we have got to determine that,” he said.
Ram, who was present in court, told reporters that while it would have been ideal to have the decision, the court “had sufficient reason today to set another date.” He said the court is very mindful of the importance and the time sensitiveness of the decision. “I think the executive will pay appropriate deference to any judgement of the court, so I am not too concerned…,” he further said.
According to Ram, yesterday’s adjournment should not be seen as a delay but rather as part of a process. He reminded that the court said that it needed clarification on several issues and wanted copies of the law reports of some of the case cited by Jagdeo’s attorney. He said that this is all part of examining the matter with the “seriousness and consideration it deserves.”
Ram said he was hoping that the matter would be completed by month end.
Gaskin, in his affidavit in support of his application, said he had been advised that the list submitted by the Leader of the Opposition to the President met the requirements of Article 161 (2).
He said the President has exercised his discretion in relation to the appointment by emphasising, “I am going to choose somebody who is fit and proper to be a judge.”
However, Gaskin added, “I have since learnt from several sources that Mr Christopher Ram… is a person who is qualified to be a judge, having been admitted to practice law for more than the prescribed seven years.”
Gaskin also said that he had undertaken research and had consulted with persons associated with all the elections since 1992. “My research shows that only one of the past Chairmen of Gecom since 1992 was a person who was a judge or a person qualified to be a judge.”
Jagdeo’s attorney, Anil Nandlall, in his submissions, has argued that in applying certain principles to Article 161 (2), it is clear that it is not within the President’s power to determine who “fit and proper person” is.
He said the President’s discretion lies in determining whether a person is acceptable or not and that in exercising this power, the president is obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily.