President David Granger’s unilateral appointment of a Chairman of the Guyana Elections Commission is undemocratic and has been compounded by his refusal to provide reasons for the rejection of nominees by the Opposition Leader, according a lengthy statement today from Transparency Institute Guyana Inc (TIGI).
TIGI also said that the Leader of the Opposition, Bharrat Jagdeo has also not helped democracy by selecting some persons who would have been clearly unacceptable to the President.
TIGI’s criticism of the unilateral appointment adds to the broad civil society rejection of the naming by Granger of retired Justice James Patterson. TIGI’s views will also carry weight as a result of its affiliation to global watchdog group, Transparency International.
Press Statement by Transparency Institute Guyana Incorporated (TIGI)
Title: President’s Unilateral Appointment of the GECOM Chair
The former Chair of GECOM, Dr. Steve Surujbally demitted office on November 30, 2016 launching Guyana into a search for his successor. That process ended on the evening of October 19, 2017 with the unilateral appointment and swearing-in of Retired Justice James Patterson, by President Granger. President Granger appointed Retired Justice Patterson after deeming the third list of nominees submitted by the Leader of the Opposition unacceptable. In justifying his selection and appointment of Retired Justice Patterson, President Granger is quoted as having said that “I informed [the Leader of the Opposition] that I found the third list of nominees … was “unacceptable” within the meaning of the Constitution. I have also paid careful attention to the ruling of the Chief Justice … given the need to appoint a Chairman of GECOM and in light of the failure of the Leader of the Opposition to present a list that is not unacceptable I have decided that it would be in the public’s interest to resort to the proviso of article 161 (2).”
The Chairman of GECOM can be regarded as the proximate custodian of our democracy of which elections are one of the most important components. It is imperative that the appointment of the Chairman who presides over elections and elections processes observe and adhere to the highest standards of transparency and accountability. TIGI also believes that the selection and appointment of the Chair would be best done within a framework and in a manner that inspire confidence in the office of the Chair, and in the processes and results of elections.
We are poignantly aware of the problems that Guyana has had with elections; from the widespread charges of “elections rigging” under the old PNC regime to the more recent accusations of list manipulations and incorrect assignment of seats under the PPP/C. Issues such as the validity of voters’ lists, integrity of procedures on election day, assignment of votes and seats to parties and final announcement of results are all important to the final outcome of elections. The centrality of the role of the Chair to the health of the elections processes in general is well recognised. Hence, missteps in and deliberate distortions of any part of the appointment process is something that should worry all Guyanese.
The requirements of the constitution aside, it is essential that both the President and the Leader of the Opposition always put the interest of Guyana above political manoeuvring in the appointment of a Chair of GECOM. This appointment ought always to be done in a manner that contributes positively to the shoring up of democratic norms and to nation building.
Democracy and the Law
If the President can, in his own deliberate judgment, reject the list submitted by the Leader of the Opposition then unilaterally and lawfully appoint the Chair of GECOM, the law itself might be undemocratic and upholding democracy would therefore be left to the principles, values and beliefs of the individuals involved in the process.
On the part of the Leader of the Opposition, there were consultations with civil society to arrive at nominees. TIGI made no recommendations but attended discussions and witnessed the process. The Leader of the Opposition having selected from the names recommended to him was able to achieve at least the appearance of inclusiveness though TIGI believes that some of the recommendations submitted were outrageous and meant only to exclude other more reasonable names from among those submitted by civil society, because they were unacceptable to the Leader of the Opposition. This is politics at play, but some argue that the Leader of the Opposition was within his right to make those submissions.
On the part of the President, we recognise that he facilitated multiple attempts at submission of lists by the Leader of the Opposition. Some legal experts argue that he, from a constitutional perspective, only needed to allow a single submission. The question about whether or not both the President and the Leader of the Opposition acted unconstitutionally in relation to requesting and submitting three lists of nominees is therefore relevant and it is something that should be addressed by the court before this becomes an entrenched precedent. That notwithstanding, it appears that the President was attempting to honour the principle of inclusion by entertaining multiple submissions after he found the first list to be, in his judgment, “unacceptable”.
In spite of all this, the final outcome was and is an undemocratic one. This stands regardless of whether or not one believes that the Leader of the Opposition forced the hands of the President by deliberately stacking the lists submitted with names that he knew would have been more acceptable to him than to the President. We say this from the perspective that democracy is a process that ensures inclusion without first inspecting the potential result.
If democratic principles are applied when they are convenient and disregarded when they are not, we cannot claim to have a democracy even if it finds support in the law. For this reason, TIGI believes that the President’s unilateral appointment is less than ideal for democratic development in Guyana.
The Law and the Legal
Many legal experts and other commentators have examined the law governing the appointment of the GECOM Chair. Four salient issues have emerged. These are:
1) Whether the GECOM Chair must be a judge or whether? the “other fit and proper person” relaxes the eligibility criteria.
2) Whether the President is allowed to reject the entire list of nominees as a unit if at least one entry is deemed to not be “fit and proper” or reject the individual nominees within the list so that if at least one is “fit and proper” a selection must be made.
3) Whether the President must explain the rejection of each individual in a submitted list or the list as a whole.
4) Whether or not unilateral appointment of the Chair is reserved for only when no list of nominees is submitted.
The legal experts have not found agreement, but an underlying issue is that many of them are concurrently known and declared members of particular political camps. These individuals should understand the sway they hold over citizens and act responsibly especially given that the stakes are high. Whereas there is space for expression of views by all Guyanese, this matter that is naturally politically charged is best handled in the court of law and not of public opinion by politically partisan individuals.
As the debate rages on, TIGI holds that the court is the final authority on the interpretation of the law. The ruling of the court needs to be successfully challenged if it is perceived to be incorrect in order for it to be disregarded.
Fit and Proper
Articulation of the eligibility criteria for the GECOM Chair is important for transparency. While such articulation is enshrined in the law, there has been debate about whether or not only a judge can be Chair of GECOM.
On the one hand, there is the ejusdem generis rule which would confine “any other” to what preceded it and this could lead to the conclusion that a fit and proper person must be a judge. On the other hand, the substantive categories of persons identified are
[(1)] 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 [(2)] who is qualified to be appointed as any such judge, or [(3)] any other fit and proper person.
It may seem that judges are exhausted by the first two categories. One can therefore argue that the ejusdem generis rule is unnecessary and conclude that “any other fit and proper” was meant to expand eligibility.
The ruling of the court supports expansion of the eligibility criteria. Therefore, this must be the binding interpretation for everyone, unless it is successfully appealed. The interpretation by which the President stands therefore appears to be on shaky grounds. Yet it is his interpretation that enabled rejection of the lists and ultimately the unilateral appointment of the Chair.
Reject the List or the Persons on the List
The language of the law has led to disagreements on whether the entire list is unacceptable if at least one person on it is ineligible or whether the rejection of the list must follow the finding of none on the list to be “fit and proper”. It seems that it is the individuals in the list that must, or must not, be rejected. Supporting this is the fact that the Chief Justice in her ruling said that the President should provide reasons for rejecting any candidate, and therefore this must be the binding interpretation, unless it is successfully appealed. However, when asked whether he would provide reasons, the president reportedly said that “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.”
The President’s refusal to explain the rejection of the individuals in the list is a rejection of accountability. Even if it were not legally required that the President explain his rejection of each individual in the list, such an explanation would be essential for transparent and accountable governance. The President’s attitude to accountability is disappointing.
Though the President’s explanation of his rejection of each individual in the list, can lead to more legal challenges, rejection of the submissions by the Opposition for the GECOM Chair, in the context of a democracy, must not be a trivial matter or one that cannot be defended. That the President has so far kept his reasons from scrutiny prevents us from coming to his defence, if indeed they are defensible. It is tests such as these, not the easy proclamations by someone with power, that evidence commitment to transparency and accountability, which are needed to remove the spectre of rigged elections from our fragile democracy.
When to Make Unilateral Appointment
To begin with, TIGI believes that there should be no room for unilateral appointment of the GECOM Chair. That the constitution caters for this, is unfortunate and it is something that should be changed. In the meantime, when and where there is disagreement over what the Constitution says about the unilateral appointment of a GECOM Chair by the President, recourse to the court ought to be sought.
The decision by the President to proceed with his particular interpretation of the Constitution opens his decision to the charge that he has rejected a list or lists in order to make a unilateral appointment. When this is compounded with the current approach of not explaining in detail the rejection of the individuals in the list, a dangerous precedent emerges. This combination has essentially reduced the requirement that the Leader of the Opposition submit a list of nominees to a privilege bestowed by the goodwill of the President instead of establishing it as a right that must be honoured.
The President’s unilateral appointment of Justice James Patterson as Chair of GECOM without justifying his rejection of the nominees in the lists submitted, is not a progressive step for Guyana both with respect to democratic principles and accountability, and it has created a precedent that will be convenient when it is and inconvenient when it is not. The activation of such vagaries in the process of filling the post that might be considered the custodian of our democracy is indeed a grave consequence.
The Leader of the Opposition has not helped democracy either by selecting some persons who would have been clearly unacceptable to the President. By so doing, he would also have engendered a substantial amount of distrust about any of the persons he submitted.
Some areas of the law seem grey and those areas have been bludgeoned into our consciousness in this recent search for the GECOM Chair. There is still room for the meaning and intent of the law to be fully clarified by the court.
TIGI calls upon both parties and the rest of civil society to craft a different formula for the selection of the elections commission chairman. We are well aware that there have been calls throughout the years since it was first applied to replace it. We wish to remind that the formula was agreed for single use only.
Transparency Institute Guyana Inc.