I am convinced that the PNC has not changed, from, historically, a party that is innately and inherently authoritarian and undemocratic and if allowed, will rig every election in this country as it has done from 1968-1985. The unilateral appointment of Retired Justice James Patterson vindicates absolutely what I have said, repeatedly, over the last two and a half years, that is, we are on a road to political dictatorship and authoritarianism. The President did not see it fit to even consult with his coalition partners in Government on this fundamental appointment. It is difficult to conceive of a clearer exhibition of dictatorship than this.
I said from the inception that President Granger would eventually choose a person for his own liking, irrespective of the provisions of the Constitution. A year thereafter, that is exactly what he has done. In the process, he has led this nation along a deceptive and agonizing path of public debates on constitutional interpretations, public consultations that produced 18 outstanding Guyanese, all of whom were eventually rejected, and a ruling from the constitutional court – all of which made no difference in the end. Instead of using the Ruling as a guide, the President craftily uses selective parts of it to justify his perverse appointment.
The President, from the inception, misinterpreted Article 161 (2) of the Constitution by contending that it only qualifies a judge, a former judge or a person qualified to be a judge, for the position of the Chairman of the Guyana Elections Commission (GECOM). When this interpretation was met with public condemnation, only then the President conceded that that provision of the Constitution also caters for “any other fit and proper person”. Even when he recognized that the Constitution spoke to the latter category, the President and his Attorney General injected another nonsensical slant to their interpretation by arguing that the Constitution expresses a preference for the judicial category.
These infantile interpretations to the clear language of the Constitution were all put to rest by the Chief Justice’s Ruling. Now the President has misinterpreted the other part of Article 161 (2), that is, the proviso. When one examines the intention of the framers of the Constitution, which was to create a bi-partisan mechanism to produce a chairman of GECOM, no rational mind would be unclear when the proviso can be activated. It can only be activated when no list has been submitted by the Leader of the Opposition. Once a list has been submitted, this proviso has no applicability. Any other interpretation would make a mockery of the letter but moreover, the spirit of the Constitution because every President would then be free to reject a list submitted to him by the Leader of the Opposition and appoint a person of his own choice, rendering the very constitutional provision otiose, superfluous and nugatory. President Carter and those who coined the Carter Formula were not that naïve.
Let us examine what responsibility the Article imposes on the Leader of the Opposition and the President, respectively. I submit that a duty is placed on the Leader of the Opposition to submit a list of six names to the President, which in the opinion of the Leader of the Opposition is not unacceptable to the President, from which the President is empowered to choose one. Since the Leader of the Opposition is not endowed with clairvoyant powers or an ability to read the President’s mind, the framers of the Constitution could not have expected and do not expect him to know which names the President would find not unacceptable. Therefore, the responsibility is on the Leader of the Opposition to select six names that in his opinion, the President would find not unacceptable. The Leader of the Opposition submitted not 6 but 18 such names to the President. To his credit, the Leader of the Opposition did not confine the 18 names submitted to his subjective judgement. He engaged several major organisations in this country in a consultative process which produced those names.
Simultaneously, when the Constitution vests with the President, a power or a discretion to determine whether the names are not unacceptable, the framers of the Constitution expect and the law mandates that power and discretion to be exercised rationally and reasonably and not capriciously and whimsically but in a manner that a responsible President would do in the circumstances. To enable him space to exercise that power, the Constitution was fair enough to give him six choices. In this particular instance, he had 18 choices.
If any doubt or ambiguity arises in interpreting the literal language of the constitutional provision, then the established cannons of construction mandate that the golden rule be employed in the interpretative process. This golden rule requires the interpreter to decipher the intention of the framers of the Article. This takes us straight back to the Carter-Price/Formula, where the intention was to dispense with the unilateral appointment of a chairman of the Elections Commission and to establish an elections commission whose membership evenly reflects both the Opposition and the Government with a Chairman produced by a process involving both the Leader of the Opposition and the President. Out of this intention, came GECOM, comprising of 6 Commissioners, three representing the Government and three representing the Opposition and a Chairman who is empowered with the authority of a casting vote to break gridlock and who is to be appointed from a list of six names emanating from the Leader of the Opposition from which the President is obliged to select one. Therefore, the President was never intended to have a unilateral power of appointment. His power of appointment is circumscribed to that list of six names submitted to him by the Leader of the Opposition. It is only in the rare and exceptional circumstance where there is no list submitted then the President can make a unilateral appointment.
I must emphasize that it was never expected that the President must find the names acceptable. After all, the names are coming from his political opponent. That is why the framers of the constitution, rather than use the word acceptable they used the double negative, not unacceptable. Therefore, the names submitted are not necessarily to be acceptable to the President. They must be not unacceptable. The term not unacceptable does not mean acceptable. I say all of this to illustrate the length at which the framers of the constitution travelled to ensure that there is a Chairman produced through a bilateral process and to eschew a unilateral appointment, except in that rare and exceptional circumstance where there is no list provided. Therefore, a unilateral appointment will lead to the destruction of that vital balance at GECOM, which the framers of Article 161 intended to create.
Mohabir Anil Nandlall, MP