Bar Council expectation of President’s adherence to ruling on GECOM Chair premature

-Ministry of Legal Affairs

The Ministry of Legal Affairs yesterday said it believes that the Guyana Bar Association’s (GBA) expectation that President David Granger will conform with the recent ruling by Chief Justice (ag) Roxane George-Wiltshire on the GECOM Chairman is premature as the applicant has signalled his intention to appeal.

In a statement yesterday, the Ministry was replying to one issued on Saturday by the Bar Council of the GBA  which said it expects that the state will abide by the Chief Justice’s (ag) orders for the appointment of the Chairperson of the Guyana Elections Com-mission (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 in response to recent statements made by President Granger, who said that he will continue to act on the matter based on his interpretation of the Constitution with respect to the appointment.

In its statement yesterday, the ministry said that since the CJ’s ruling, the applicant, Marcel Gaskin has said that they will challenge aspects of the ruling. It said that Opposition Leader Bharrat Jagdeo has also signalled his intent to challenge.

The Ministry noted that following the CJ”s ruling Gaskin had said, “in my view, the Honourable Chief Justice went beyond what was asked by me of the court in addressing the proviso to Article 161 (2) which only applies if the Leader of the Opposition fails to submit a list. This was never an issue for us since the Leader of the Opposition submitted not only one but two lists of persons for nomination as Chairman of GECOM.” He argued, the ministry said, that Justice George-Wiltshire by “extending beyond the requirement of my case,” made a “gross error” in ruling that the President is not obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as fit and proper person for appointment. “This is a non sequitur and creates unnecessary misunderstanding and confusion,” said Gaskin who noted that “in the circumstances, and despite the Honourable Chief Justice’s otherwise helpful ruling, I have instructed my attorneys to immediately lodge a Notice of Appeal.”, the Ministry reported Gaskin as saying.

The ministry noted that Jagdeo has said “…I am informed that in the course of her ruling, the Honourable Chief Justice 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 the proviso to Article 162 of the Constitution had not been 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.

“The Ministry of Legal Affairs questioned given the foregoing statements by both gentlemen whether it would not have been prudent for the Bar Association to call on them to conform with the CJ’s ruling, rather than directing its message to the President who has not expressed any public dissatisfaction with the judgment or stated any intention to appeal it. Additionally, the Legal Affairs Ministry asserted that in any event, the CJ’s ruling is not a final binding one as the applicant has six weeks to appeal and the case can go all the way to the Caribbean Court of (Justice)  for a final decision”, the ministry statement added.

The ministry also referred to Attorney General, Basil Williams SC initial comments on Justice George-Wiltshire’s ruling, saying that her decision confirms  that it is the President who must determine that the list is acceptable. The Chief Justice also confirmed that it is the President acting in his own deliberate judgment who must determine whether a person is fit and proper, the AG has said. “The Chief Justice also advised that there is no legal requirement for the President to state reasons for rejecting a list, though modern thinking suggests that he should. The Chief Justice further advised that the President is not obligated to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as fit and proper persons for appointment.”

The AG had said too that the Chief Justice advised that each person must be considered by the President unless the President provided the Leader of the Opposition with guidelines of who is unacceptable. The Ministry statement noted that President Granger did provide the Leader of the Opposition with a list of criteria for a Person to be qualified for the position of Chairman of the Guyana Elections Commission. The Leader of the Opposition did not object to those criteria and submitted a second list. The Attorney General contended in the statement yesterday that the President did not have to receive a second list and could have gone ahead and appointed a chairman having rejected the first list.

With differing interpretations of her decision, the public is awaiting a written ruling from Justice George-Wiltshire in the interest of clarity.

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