Appointment of Gecom chair expected to conform with court ruling

– Bar Council says after president’s comments

The Bar Council of the Guyana Bar Association (GBA) yesterday said it expects that the state will abide by Chief Justice (ag) Roxane George’s orders for the appointment of the Chairperson of the Guyana Elections Commission (Gecom).

“The Bar Council is confident that, like in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the Chief Justice,” the body said in a statement issued yesterday in response to recent statements made by President David Granger, who said that he will continue to act on the matter based on his interpretation of the Constitution with respect to the appointment.

Based on application by businessman Marcel Gaskin for declaratory orders on the meaning of Article 161(2), which provides for the appointment of the Gecom Chairperson, last Monday Justice George ruled, among other things, that the appointee did not have to be judge, former judge or someone eligible to be a judge. 

She also found that nominees falling into those categories and those who are “fit and proper” are equally qualified to hold the post of Gecom Chair. She would later state that while there was 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. The President and his team had been emphasising that the ideal candidate should be a judge or someone eligible to be a judge.

Justice George also said that the President should give an explanation for the rejection of any candidate.

A written decision is not yet available and as a result each party in the case has given differing views on what the judge found.

In its statement yesterday, the Bar Council noted Granger’s remarks last Wednesday on the judgment.

Shortly after swearing in four High Court judges and an appellate judge, Granger told reporters at State House that the Chief Justice gave the ruling based on her perception of the law. “I will continue to act in accordance with my perception of the Constitution; that is to say, I will not appoint somebody who I do not consider fit and proper,” he said.

The Bar Council also took note of Granger’s comments on providing reason for rejecting nominees.

During the ruling, the Chief Justice 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.

Asked at State House if he would give reasons as to why he has rejected the two lists, which comprise 12 names, that have been submitted by Opposition Leader Bharrat Jagdeo, Granger responded, “If you can show me the Article of the Constitution which requires me to give reasons, I will comply with the Constitution but I will not do what the Constitution does not require me to do.”

Not devoid of legal effect

However, the Bar Council pointed out that declaratory orders made by the Chief Justice, based on Her Honour’s application of principles of law, are not interpretations or opinions and, “like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.”

The statement said that the leading legal treatise on this type of order describes the effect of a declaratory order, in the following terms:

“…whilst the defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings.”

It added that the treatise makes it clear that the “refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration.”

The GBA was last month granted permission to be made a party to the application as a friend of the court. It had made it clear that it only wanted to assist where necessary to bring clarity to the matter.

Gaskin had sought declarations on whether the list of nominees to be submitted to the President by the 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 was required under the Constitution to state reasons for deeming each of the six names on the list submitted as unacceptable; whether the President was 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 was not a fit and proper person rendered the entire list as unacceptable.

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. Gaskin subsequently filed his motion.

Following the first rejection, Granger provided Jagdeo with a list of qualities he expects a Gecom Chairman to have and argued that the Constitution placed emphasis on the qualities of a judge.

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. Granger has asked for a third list and this is presently being finalised by Jagdeo.

Justice George in her ruling said too 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 had said that the Constitution provides a framework for consultation between the two sides which should be consistent.

Attorney Sanjeev Datadin, who represented the GBA, had told reporters shortly after the ruling that it meant that 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.

After the ruling was handed down, the Ministry of the Presidency and the Opposition Leader’s office said in separate statements that the findings on the interpretation of the Constitution vindicated their respective positions on the selection of a Gecom Chair.

Attorney General Basil Williams SC has since said that Jagdeo is to be blamed for the current state of affairs since he has failed to deliver an acceptable list even after being provided with guidelines.

Speaking to reporters at State House shortly after Granger spoke, Williams said, “We place blame on the Leader of the Opposition for failure to comply with the constitutional requirement to supply a list of six persons…he can’t supply a list of five or two and conform with the constitutional requirements so the first list…was one that was rejected for that fact and the second list also,” he said before reminding that after the rejection of the first list, the President put out a list of criteria but Jagdeo did not conform with it, based on the second list that was submitted. He said that it is clear from Jagdeo’s conduct that he hasn’t even accepted the guidelines.

Despite Granger’s statements, Williams indicated that government will accept the Chief Justice’s ruling, which confirms that the President has to determine who is “fit and proper” and whether the list is acceptable or not.

Williams insisted that the President has been acting properly and judiciously. “He didn’t have to go to a second list but right now he is inviting a third list, so we are trying to work with the Leader of the Opposition to supply a list of six persons… that are acceptable… The Chief Justice said that the President could have gone ahead and made an appointment but the President has been trying to work with the Leader of the Opposition to arrive at a candidate that is universally acceptable,” he said.

Gecom has been without a Chairman since February. The Bar Council had previously issued a call for an appointment to be made urgency.

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