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 from Transparency Institute Guyana Inc (TIGI).
TIGI yesterday 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 appointment 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.
Contending that the post of Chairman of GECOM can be regarded as the proximate custodian of democracy of which elections are one of the vital components, TIGI said it is imperative that the appointment of the Chair-man “adhere to the highest standards of transparency and accountability”.
TIGI said it also believes that the selection and appointment of the Chairman would be best accomplished within a framework and in a manner that engenders confidence in the office of the Chair, and in the processes and results of elections.
It said that it is “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”. It argued that the centrality of the role of the Chairman to the health of the elections processes in general is well recognised. Therefore, it said that missteps and deliberate distortions in any part of the appointment process is something that should worry all Guyanese.
It added that it is essential that both the President and the Leader of the Opposition always place the interest of Guyana above political manoeuvring in the appointment of a Chair of GECOM.
TIGI asserted that if the President can, in his own deliberate judgment, repudiate the list submitted by the Leader of the Opposition and then unilaterally and lawfully appoint the Chairman of GECOM, the law itself might be undemocratic and upholding democracy would be left to the principles, values and beliefs of the individuals engaged in the process.
Noting that the Leader of the Opposition, consulted with civil society to arrive at nominees, TIGI said it 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”, TIGI said.
As it relates to the President, TIGI said it recognises that he enabled several attempts at the rendering of lists by the Leader of the Opposition.
TIGI said that some legal experts argue that from a constitutional perspective, the President only needed to allow a single submission. The question about whether the President and the Leader of the Opposition acted unconstitutionally relative to requesting and submitting three lists of nominees is therefore relevant and it is something that should be tackled by the court before this present case becomes an entrenched precedent. Notwithstanding this, TIGI said 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 transparency group declared.
TIGI then went on to cite a number of questions that have been raised about the provisions dealing with the appointment of a Chairman.
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 permitted 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 on 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 list or the list as a whole.
4) Whether or not unilateral naming of the Chairman 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’, the transparency group said.
TIGI also addressed the debate about whether or not only a judge can be Chair of GECOM.
On the one hand, it said that 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.
TIGI said it may seem that judges are exhausted by the first two categories and one can therefore argue that the ejusdem generis rule is unnecessary and conclude that “any other fit and proper” was intended to expand eligibility.
“The ruling of the court (Chief Justice Roxane George) 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”, TIGI posited.
It pointed out that the language of the law has also led to disputation on whether the entire list is unacceptable if at least one person on it is ineligible or whether the rejection of the list requires the finding of none on the list to be “fit and proper”. TIGI said it seems that it is the individuals in the list that must, or must not, be rejected. Supporting this, it said, is the fact that the Chief Justice in her ruling said that the President should provide reasons for rejecting any candidate, and this therefore must be the binding interpretation, unless it is successfully appealed. TIGI noted that when he was asked whether he would provide reasons, President Granger 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.”
TIGI criticised the President over this.
“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”, TIGI declared.
TIGI also said 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”, TIGI asserted. It further stated that the President’s unilateral appointment of Justice Patterson 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 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”, TIGI said.
It said that the Leader of the Opposition has not helped democracy either by choosing 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”, TIGI contended.
The transparency body called on both parties and the rest of civil society to devise a different formula for the selection of the elections commission chairman. It said it was well aware that there have been calls over the years since it was first instituted to replace it and reminded that the formula was agreed for single use only.