The present arrangements for selecting the Gecom chairman date back to 1991, and the intervention of the Carter Center and President Jimmy Carter himself in helping to forge agreements which made possible the first free and fair election for twenty-four years.
On the one side of the negotiations was President Hoyte, and on the other was the Patriotic Coalition for Democracy (PCD), comprising the PPP, WPA and three other small political parties. At the time Harold Bollers was chairman of the elections commission, on which also sat one representative from the PNC and one from the PPP.
Given the history of Guyana’s elections, Bollers was a highly controversial chairman, and the PCD was adamant that he would have to go and that the commission would have to be reformed. On April 4, 1991, Hoyte gave way, and said he would “seriously consider” five names put forward by the PCD to replace him as Chairman, and that he would agree to the commission being reconstituted with the PNC and the opposition each appointing an additional two commissioners.
The agreement acquired a more formal cast a week later, although where the list was concerned, four of the five names earlier submitted had to be withdrawn, and only the name of a business leader was resubmitted. In the end, President Hoyte extracted the name of Ambassador Rudy Collins from the new list which the Guyana Chronicle says also included Jules de Cambra, Joey King, Edward Luckhoo, Bryn Pollard and David Yankana.
This arrangement for the appointment of the Gecom chairman was originally known as the Carter-Price Formula, after Belizean Prime Minister George Price, who was leading the Carter delegation at the time Hoyte made the concession, but is now generally referred to as the Carter Formula.
The point is, at the time it was regarded as a purely temporary mechanism, and was still regarded as such subsequently when it had to be constituted again in 1995 in readiness for the election two years later. It finally became institutionalized as a permanent feature of our electoral machinery by virtue of the Constitution (Amendment) Act of 2000.
That notwithstanding, the Carter Center, along with a number of other voices over the years, was of the view that the elections commission should be an independent body, composed primarily of members of civil society and professional experts, and should not be a political institution.
In our highly politicized climate, however, where neither side of the political-ethnic divide trusts the other, and where they simply do not believe that there is such a concept as an independent Guyanese citizen, there has been little appetite for moving in that direction.
It must be said that for all its politicized quality, the arrangement for appointing a new Gecom chairman at least, has worked tolerably well until now. Ambassador Rudy Collins was followed in 1995 by Mr Doodnauth Singh, who was succeeded by Maj Gen (rtd) Joseph Singh in 2000.
His successor in 2001 was Dr Steve Surujbally, who has now resigned. All were on lists submitted by the PNCR when in opposition, lists, it might be added, which included the name of Mr David Granger on two successive occasions.
In December last year, Leader of the Opposition Bharrat Jagdeo, in accordance with the constitutional requirements submitted a list of six names to President Granger from which to choose a Gecom chairman.
The names were: Christopher Ram, Ramesh Dookhoo, Ryhaan Shah, James Rose, Lawrence Lachmansingh and Norman McLean. First the President requested their curricula vitae, which were supplied, and then last Sunday, the President indicated that the list which was sent to him was “unacceptable.” His grounds appeared to be the fact that none of the candidates was a former judge or someone eligible to be appointed a judge. “Four times in one article [of the Constitution] it mentions that word, judge. So the only thing about the list is that it comprises six names,” our report quoted him as saying.
This is an entirely new departure, in so far as no president from Hoyte onwards has declined to name someone from the list submitted by the opposition, in addition to which the President has put a very idiosyncratic interpretation on the words of the Constitution.
It was reported that in his letter to Mr Jagdeo he wrote: “the six nominees are unacceptable within the meaning of the Constitution…” and urged that a new list be submitted. When asked on Wednesday about the fact that his name had been placed twice on lists by then President Hoyte, Mr Granger replied obliquely, “even if … a nomination [had] been made in breach of the Constitution, 10 or 20 years ago, there is no need to repeat it.”
Despite his statements, the by now oft-quoted Article 162 (2) includes a category not mentioned by the Head of State. In addition to a judge, former judge, or someone qualified to be appointed a judge, there is a category of “any fit and proper person.” As it is, no judge or former judge has ever been appointed, and only Doodnauth Singh would have qualified to become a judge; everyone else fell into the “fit and proper person” category. Furthermore, although there were judges on the earlier lists, none was chosen.
By Wednesday of last week, Attorney General Basil Williams had acknowledged the category of “fit and proper person” as an alternative constitutional requirement, and interpreted the President’s words to mean that “…where our country is, that person who is going to take up that job must have that background – the judicial background of a lawyer who could be a judge.” However, he also averred, “Only the President can determine who is a fit and proper person,” an interpretation strongly rejected by the legal spokesman for the opposition, Mr Anil Nandlall.
If indeed the AG’s understanding of President Granger’s words are correct, even a layman could justifiably comment that it is not for the Head of State to decide to completely ignore one category in the Constitution, and confine himself only to the judicial one when making his decision. He cannot unilaterally reformulate the Constitution to suit his purposes.
The Leader of the Opposition responded to the President in low-key fashion by asking for clarification of his interpretation of the nominees’ qualifications, in addition to which he proposed a meeting to resolve the matter. Nothing further has been heard from the President on the matter of a meeting, from which one can infer that he does not wish to move in that direction; however, he did let it be known that clarifications would be forthcoming, and these would be of a legal character. Up to the point of writing, these had not been sent.
Every Guyanese knows that this is not a debate about legal interpretations of the Constitution; it is about politics. While there are names on the list which would not reasonably be considered, such as anyone who has been a candidate on a PPP platform, there are others who would be suited for the post. There is no legal basis or rational basis, for that matter for rejecting all the nominees in their entirety, and one can only assume that the President has political or related objections, or perhaps even that he has someone in mind he would ideally like for the position.
If President Granger doesn’t meet Mr Jagdeo to iron out misunderstandings, the PPP does not submit another list, and he is not prepared to entertain anyone on the existing list, then he may feel inclined to make a unilateral appointment. In that eventuality, however, the Constitution requires that he would have to appoint a judge or former judge. As things stand, he has not left himself much room for manoeuvre, and if he does elect to go the unilateral route he will inevitably be accused of having wanted to name his own appointee all along. Furthermore, the opposition has already indicated that it will not accept a unilateral appointment.
What all of this means, therefore, is that potentially we could have embarked on the road to a constitutional crisis and everything that comes with that in this country. At the very minimum, it will revive all the old shibboleths about the PNC. Since the President is the architect of this situation, one can only hope that together with his legal advisors he can work out a reasonable exit strategy and in the process don the cloak of compromise.