Acting Chief Justice Roxane George SC yesterday ruled that the list of nominees for the post of Guyana Elections Com-mission (Gecom) Chair does not have to include a judge, a former judge or a person qualified to be a judge and that the President must state reasons for rejecting any candidate.
Additionally, Justice George also found that if the President finds one or more of the nominees unacceptable, it does not disqualify the entire list.
Businessman Marcel Gaskin, who filed the motion seeking an interpretation of Article 161(2) of the Constitution earlier this year, in a statement yesterday expressed his satisfaction with the ruling, which was handed down orally. However, he objected to Justice George’s position that “the President is not obligated to select a person from the list, unless he has determined positively that the persons are unacceptable as fit and proper persons for appointment. This is a non sequitur and creates unnecessary misunderstanding and confusion,” he said. He has since instructed his attorneys to lodge a Notice of Appeal immediately.
Gaskin had approached the court in March after the first list of six 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 Chairman.
Gecom has been without a Chairman since February.
Jagdeo and Attorney General Basil Williams, who are listed as respondents in the case, did not want to offer comments on the ruling yesterday.
In her 45-minute judgement, Justice George said she agreed with the arguments of lawyers representing both the Leader of the Opposition and the Guyana Bar Association (GBA) against the validity of the appointed person being a judge, former judge or eligible to be a judge. She told the court that persons falling into each of these categories are equally qualified to hold the post of Gecom Chair. She would later state that while there is no requirement for the persons nominated to have judge-like qualities, they should have integrity, honesty and impartiality, which are all akin to the qualities that a judge should possess.
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 Commis-sion” that was sent by Granger to Jagdeo stated that 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 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 comprising retired judges BS Roy and William Ramlal, attorneys Oneidge Walrond-Allicock, Nadia Sagar and Kashir Khan and businessman Gerry Gouveia. That too was rejected.
Justice George said that having six names acceptable to the President may be difficult to achieve unless the President provides the Leader of the Opposition with guidelines. She said that the Constitution provides a framework for consultation between the two sides which should be consistent. She later said that in rejecting a nominee, reason should be given.
Justice George, prior to reading her ruling, said that a written decision would not be immediately available as she had made some additions. No indication was given as to when the written ruling would be made available.
In his statement, issued hours after the ruling was handed down, Gaskin said that the Chief Justice has “brought clarity on a number of issues” regarding the appointment of the Gecom Chair.
In particular, he said the Chief Justice supported his contention that the list of six names submitted by the Leader of the Opposition does not require the inclusion of a judge, a former judge or a person qualified to be a judge; that the President is required to state reasons for deeming any and every one of the six names as unacceptable and that a finding of fact by the President that anyone or more persons on the list is not a fit and proper person does not render the entire list as unacceptable.
Gaskin had sought declarations on whether the list of nominees to be submitted to the President by Leader of the Opposition, under Article 161(2), must include a judge, a former judge or a person qualified as a judge; 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.
Gaskin said it was his view that the Chief Justice “went beyond what was asked by me of the court in addressing the proviso to Article 161 (2) which only applied if the Leader of the Opposition failed to submit a list.”
The Article 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 proviso states, “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.”
Meanwhile, attorney Sanjeev Datadin, representing the GBA, which was last month granted permission to be involved in the matter as a friend of the court, said that from his interpretation of the ruling there is to be one list which could be amended if required.
He told reporters that while “certain things are settled,” the GBA awaits the availability of the written decision so as to be able to give a better response.
Asked whether any mention was made about the submission of multiple lists, Datadin responded in the negative, saying that as he understands it, there is to be one list which can be amended.
“That follows from the reasoning that if persons are unsuitable, reasons should be given or they should be identified… who are the unsuitable persons and then what would follow, that you can amend the list… The legislation and the Constitution is very, very clear. One list is to be submitted and only one list should be submitted,” he told reporters while stressing that if there are persons on the list who are unsuitable and the President requires a full complement of six, “you can substitute persons on that list but providing a whole new list does not seem to be in the contemplation.”
Asked if the submission of an additional six names does not constitute a new list, he responded, “…it might be a legal fiction but what it would constitute is an amendment to the list meaning that you amended it with six different names but the terminology of a first list and a second list is not what the Constitution contemplates at all.”
He added, “We don’t know if all 12 names were rejected or some of those names rejected on each list. I think what it means now is that the President is obliged to indicate reasons and who he has rejected and if there is six that remains then I presume then a selection must be made…that is my thinking.”
According to Datadin, those nominated don’t need to be judges or eligible to be judges. “So that is clear, that there are two categories that the judge really put them into: judicial categories meaning those who are judges or eligible to be judges, or fit and proper persons which are the persons who have the qualities that would be appropriate to be appointed Chairman,” he said.
The attorney stated that his understanding of the ruling is that the judge’s position is that the President is entitled to reject persons on the list but he must give reasons for the rejection of those persons.
“In the current situation, I would think that if he is rejecting everyone then he has to give reason for the rejection of everyone but if there are persons that remain on the list that are eligible to be appointed, then he can exercise his discretion to appoint those but if he would like to have a full complement of six he can indicate that numbers one and two are rejected and I would like them replaced for these reasons,” he said.
“…There is a distinction between the President being required to answer in a court versus whether …reasons have to be given. Because how else would you know who is rejected and who is not rejected and how else would you know what are the reasons for those rejections?” he added.
Speaking on his own behalf, he said that he supports the judge’s repeated call for dialogue. “…It calls for consultation… Our leaders need to do more because this an important thing, it has implications that are far reaching to the safety and security of the nation. We should have more dialogue, more conversation in coming to a consensus to finding a suitable person,” he stressed.
Gaskin, in his affidavit in support of his application, had 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 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 and found “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, had argued that in applying certain principles to Article 161(2), it was clear that it was not within the President’s power to determine who a “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.