Yesterday, President Granger disclosed to the press that he had rejected the list of names submitted to him by the Leader of the Opposition for the appointment of a Chairman of Gecom as required by Article 161(2) of the Constitution. This is the first time that a president has rejected such a list since the Carter formula for the appointment of the Chairman of Gecom was initiated in 1992. This action by the President is, therefore, unprecedented. While the Constitution confers a discretionary power on the President to accept or reject any list, I hope that he has been advised that no discretionary power, irrespective of how untrammelled it may appear to be ex-facie, is absolute. The law dictates that every discretionary power must be exercised within certain parameters. Over the years, the judiciary has been swift in rejecting the notion that unfettered discretion exists in law and has condignly rejected any unreasonable, capricious, or whimsical exercise of a discretionary power. Similarly, where the exercise of a discretionary power is irrational, done in bad faith and/or influenced by improper motives and/or irrelevant considerations, the courts have rejected it as an unlawful exercise and an abuse of that discretionary power.
Perhaps two pre-eminent judicial pronouncements on the issue, may be useful to the reading public:
- “‘discretion’ means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke’s case; according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.” (Lord Halsbury in Sharp v Wakefield (1891) AC 173)
- “the discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant.
If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v Minister of Agriculture, Fisheries and Food which is a landmark in modern administrative law.” (Lord Denning MR in Breen v Amalgamated Engineering Union (1971) 2 QB 175, 190)
The reasons attributed to the President in the press and the social media for his rejection of the list are wholly untenable. It is that the persons do not meet the constitutional requirements. These requirements are contained in Article 161(2) of the Constitution:
“…the Chairman of the Elections Commission shall be a person 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 who is qualified to be appointed as any such judge, or any other fit and proper person.”
It is clear that Article 161(2) of the Constitution contemplates two categories of persons. Firstly, a High Court judge or an Appellate Court judge, a former High Court or an Appellate Court judge or a person qualified to be a High Court or an Appellate Court judge. Secondly, or (disjunctive), any “fit and proper” person.
However, from whichever category the persons come, they must be acceptable to the President.
Article 129 of the Constitution sets out the qualification of judges:
“A person shall not be qualified to be appointed to hold or to act in the office of a Judge unless֖
(a) he is or has been a judge of a court having unlimited jurisdiction and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court; or
(b) he is qualified for admission as an attorney-at-law in Guyana and has been so qualified for such period as may be prescribed by Parliament.”
Historically, of all the persons who were appointed Chairman of Gecom, only Mr Doodnauth Singh SC appeared to have satisfied category one qualifications, although it could be argued that he would have satisfied the “fit and proper” requirement (category two qualifications), as well. All the other persons: Rudy Collins, Edward Hopkinson, Joseph Singh and Dr Steve Surujbally lacked legal qualifications and therefore, were all qualified under the “fit and proper” requirement.
I am not surprised by President Granger’s manoeuvrings. Hence, the reason why I wrote a detailed article on this matter just one week ago. The President is playing a dangerous game. I believe these machinations will continue until the President conjures up an interpretation of the Constitution which permits him to unilaterally appoint a Chairman of Gecom.
For the sake of our nation, I hope I am wrong.
Mohabir Anil Nandlall, MP