In the absence of a written ruling by acting Chief Justice Roxane George, both the Ministry of the Presidency and the Opposition Leader’s office have said that her findings on the interpretation of the Constitution vindicate their respective positions on the selection of a Chairperson for the Guyana Elections Commission (Gecom).
However, Opposition Leader Bharrat Jagdeo yesterday said that the written decision would determine his next course of action, which could include supporting an appeal by applicant Marcel Gaskin of one aspect of the judgment.
In her 45-minute judgment from the bench on Monday, 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.
Additionally, Justice George also said that the president should state reasons for rejecting any candidate and also that if the president finds one or more of the nominees unacceptable, it does not disqualify the entire list.
Following the ruling, Gaskin, a businessman who filed the motion seeking an interpretation of Article 161(2), expressed his satisfaction with the ruling.
Article 161(2) 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.”
Gaskin, however, objected to Justice George’s apparent position with respect to the proviso to Article 161(2), which suggested that the president could proceed with an appointment outside of the names submitted by the opposition leader if he determines that all the nominees are unacceptable as fit and proper persons for appointment.
As a result, Gaskin instructed his attorneys to lodge an immediate Notice of Appeal.
Jagdeo, in a statement issued yesterday, said that he has noted reports of the ruling and Gaskin’s position on the matter, through the press, but would await a copy of the written decision before acting. He said if Gaskin’s version of what the Chief Justice ruled is correct, he too will join in the appeal of the ruling.
“I await a copy of the written decision and if that statement is in fact in the written decision, then I will have no alternative but to support any appeal filed by Marcel Gaskin in the matter,” Jagdeo said.
He told Stabroek News that up to press time yesterday, he was still waiting on the written copy of the ruling.
In his statement, Jagdeo said that based on the reports on the ruling, Justice George clarified a number of issues, including that, among other things, there is no preference by the law for any of the categories of persons eligible for appointment; that the list nominees to be submitted by him need not consist of six judicially or legally qualified persons; and that the President is obliged to provide reasons if he deems either of the six nominees submitted to him as unacceptable.
He said too that the ruling clarifies that the Constitution contemplates only one list but that list can be amended with names added and removed from it; that the finding by the President that one name is unacceptable does not render the entire list unacceptable; and that so long as a single name is acceptable to the President, he ought to appoint that person. “All of the above vindicate the position we have adopted on this matter from the inception,” he added.
However, Jagdeo added that he understood that in the course of the ruling, Justice George is interpreted to have said that if the President deems every name on a list as unacceptable, then the proviso to Article 161 applies. “If this report is correct, we respectfully take issue with this aspect of the Chief Justice’s ruling. We maintain most resolutely that the proviso only applies when no list has been submitted. That once a list has been submitted, the proviso has no applicability,” he said. “More significantly, the proviso to Article 161 of the Constitution was not placed before the Court for its interpretation, nor was it part of any of the questions posed to the Court, nor was it the subject of any legal submissions, either from the Applicant’s, nor the Guyana Bar Association’s nor my Attorneys-at-Law. It is therefore rather strange that such a proposition appears to form part of the ruling in the case,” he added.
He also noted that it was public knowledge that a list had been submitted several months ago and the first six names had been rejected as were the second set of names. He said a third set of names shall be submitted shortly, while adding that his submissions were all upon the invitation of the President.
In his public statements, President Granger had been arguing heavily in favour of a judge or a person qualified to be a judge for the appointment. While Gaskin said that based on the ruling, the Chief Justice supported his own 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, the Ministry of the Presidency did not address this aspect of the ruling.
Instead, in a statement on Monday night, the Ministry of the Presidency said the ruling upheld the government’s conviction that it is the president who must determine whether the list of nominees is acceptable.
“The Chief Justice also confirmed in her ruling that it is the President, acting in his own deliberate judgement, who must determine whether a person is ‘fit and proper,’” the statement said, while adding that the judge also advised that there is no legal requirement for the president to state reasons for rejecting a list, though it is her belief that in the furtherance of democracy and good governance, he should since Article 161 (2) speaks to the need for dialogue and compromise.
“The Chief Justice further advised that it is the Head of State who has sole discretion on the determination of what is ‘fit and proper’ and as such, the President is not obligated to select a person from the six names on a list of which he has determined positively that the persons thereon are unacceptable as fit and proper persons for appointment,” it added.
Additionally, the Ministry said the Chief Justice concluded that the President did not have to wait for the submission of a new list and could have gone ahead and appointed a Chairman, having rejected the first list.
However, it added that President Granger has made it clear that his only interest in the matter is that a name emerges out of a consultative process that matches the requirements of the Constitution and is acceptable to the government, the opposition and the people.
In January, Granger rejected the first list submitted by Jagdeo, describing it as unacceptable. That list comprised Lawrence Lachmansingh, Ryhaan Shah, James Rose, Norman McLean, Ramesh Dookhoo and Christopher Ram, none of whom are judges.
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.