Though awaiting legal advice on whether to appeal part of a court judgment which was relied on by President David Granger to unilaterally appoint a Chairman of the Guyana Elections Commission (Gecom), businessman Marcel Gaskin says he is prepared to take the matter all the way to the Caribbean Court of Justice (CCJ) if necessary.
“I think we have to exhaust all avenues where the legal process is concerned…You can appeal the ruling and it can go all the way to the CCJ,” Gaskin told Stabroek News on Friday, while voicing his dissatisfaction with President Granger’s unilateral appointment of retired Justice James Patterson and his contradictory stance on the age of persons appointed to government offices.
It was Gaskin who approached the High Court in March after the first list of six nominees submitted by Opposition Leader Bharrat Jagdeo was rejected as unacceptable by Granger. Jagdeo submitted two lists subsequently and these were also rejected as unacceptable.
Gaskin, in his application before Acting Chief Justice Roxane George, 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 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 fit and proper 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.
He had expressed satisfaction with most of the oral ruling delivered by Justice George, who ruled that there was no preference for a judge or someone eligible to be a judge to be appointed as Gecom Chairman and that where a list of names is rejected the President has to give reasons for the rejections. Hours after the ruling was read, he did indicate his objection to Justice George’s 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.
“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) of the Constitution 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 one but two lists of persons for nomination as Chairman of Gecom,” Gaskin said in a statement afterward.
According to Gaskin, this was “a gross error” which has created unnecessary misunderstanding and confusion.
Jagdeo had also said that he would join in an appeal but would rely on the release of the written judgment. The written ruling was made available months after.
Gaskin told Stabroek News on Friday that he was still awaiting legal advice on the aspect of the acting Chief Justice’s judgement that he is dissatisfied with. “I am still to be advised by my legal counsel as to the way forward on that,” he said, before adding that it is a matter that is presently being discussed.
Patterson was sworn in last Thursday, two and a half hours after Granger met with Jagdeo to inform him of the rejection of the third list and about his selection of Patterson.
The unilateral appointment of the 84-year-old retired judge, which both Granger and the Attorney General Bail Williams have sought to defend, has seen widespread condemnation from civil society.
Asked for his opinion on Patterson’s appointment, Gaskin emphasised that the president made a unilateral decision which “I think violates the spirit of that article…of the intent of that article. That article, the way I see it, is intended to ensure that there is collaboration between the president and the leader of the opposition, so that at the end of the day the person is chosen through a process of working together between the two parties and that wasn’t done because what we saw was the 18 names being rejected, no reasons given for the rejection and then a unilateral appointment. So I am pretty certain in my mind that the spirit of that article has been violated.”
He said that he was not surprised at the way things turned out, as he foresaw such an end and it was as a result of this that he filed the constitutional action to more or less prevent such an occurrence. “I always had a feeling that everything was leading up to a unilateral appointment and so the request [to the court] for clarification… was to sort of prevent that from happening,” he noted.
Gaskin said that he believes that he has failed in his efforts given what has happened. “…The Chief Justice showed the way forward how to go about making the…decision,” he said, adding that he is disappointed that the spirit of the article isn’t being followed as well as the fact that “mature leaders can’t work this thing out, regardless of whatever political differences they may have. It’s clear to me that the only way the elections and the whole process can be seen as fair by all concerned is if there is collaboration by the two.”
Gaskin told Stabroek News that his major problem is Patterson’s unilateral appointment and not so much his age. “Mr. Patterson’s age is less important for me but what worries me is the inconsistencies with regard to their policy of using older people for public service because if you do recall the president did remove Cecil Kennard [from the Police Complaints Authority] and Prem Persaud [from the Public Utilities Commission] and the reason given was that they are old and that the president wanted to pave the way for younger people to serve, which is laudable but it seems to be inconsistent with Patterson’s appointment. I don’t know the gentleman. I don’t know his level of fitness,” he said.
When approached shortly after handing Patterson his instrument of appointment, Granger did not directly justify the appointment of the aged Patterson. He stressed that government had to search for a candidate after depending on Jagdeo for the last ten months to come up with lists that were not unacceptable. “We have been searching as well and we feel that given his experience, he is a former Chief Justice of Grenada, he has long judicial service and we feel he is a fit and proper person. So it is important for the reason I have mentioned that we bring this search to an end and we get on with the business of governing Guyana,” Granger said.
Gaskin further stated that it does make sense to approach the court again in this matter but he added that his actions will be guided by legal advice.
The opposition PPP/C has filed a court action challenging the appointment of Patterson and calling in part for the court to direct the president to choose one of the 18 rejected nominees.