The debate on the interpretation of Article 161 (2) of the Constitution has continued, with increased intensity, following the rejection of lists of eighteen persons named by the Leader of the Opposition and the unilateral appointment of Justice James Patterson by President Granger. Unfortunately some writers have made claims that are at best incomplete, or are otherwise unsupported by facts.
Mr. Tacuma Ogunseye, WPA executive member in another section of the print media refers to Dr. Rupert Roopnaraine’s advocacy at the level of the WPA Executive of the “need to revisit the Carter formula” and that Roopnaraine had reminded the Executive “that the Carter Model was never intended to be a permanent arrangement and it had outlived its usefulness.” Former General Secretary of the PNC and member of Parliament and now Government functionary, Mr. Aubrey Norton, seeking to justify the President’s unilateral decision, writes that `Jagdeo and PPP laid basis to move away from Carter Formula and it has come back to haunt them’, a claim challenged by Mr. Kamal Ramkarran in yesterday’s Sunday Stabroek. Perhaps a little bit of history of the Constitution and the Elections Commission will help.
The 1966 Independence Constitution.
The Elections Commission consisted of a Chairman appointed by the Governor General on the advice of the Prime Minister, and one member drawn from any political party that had gained five or more seats in the most recent elections. Article 68 (2) provided that the Chairman had to be a judge or former judge of a court having unlimited jurisdiction in some part of the Commonwealth.
Following the passage of the Constitution of Guyana (Amendment) Act 1969, “Governor General” was replaced by the word “President”. This construct delivered some very favourable elections results to the PNC Government in the 1968 and 1973 elections and the 1978 Referendum.
The 1980 Constitution
Unsurprisingly, the 1980 Constitution retained the formula of a chairman, appointed by the President, from among a judge or former judge of a court having unlimited jurisdiction in some part of the Commonwealth. Mr. Burnham gave himself the sole authority to appoint the Chairman and dispensed with any requirement that he take the advice of anyone. The new arrangement held for the 1980 elections under Burnham and the 1985 elections under Mr. Desmond Hoyte, the results of both of which were increasingly favourable to the PNC.
The 1992 Elections
Coincident with the opening up of the economy – the unbanning of food items, the removal of exchange controls – and the opening up of the society, former US President James Carter and the Carter Center came to supervise the 1992 elections, already delayed by two years. At the insistence of the Patriotic Coalition for Democracy (PCD) in which the WPA played a prominent role, Hoyte agreed to what has come to be referred to as the Carter formula. It required an Elections Commission of six persons, three from the Government, three from the Opposition and a Chairman selected from a list of six persons submitted by Dr. Cheddi Jagan, the Leader of the Opposition.
The Constitution was not amended and the process was therefore an extra-constitutional, compromise arrangement.
The elections saw the return to power of the PPP/C after twenty-eight years.
The 1995 Constitutional amendments and the 1997 Elections
As thoughts turned to the 1997 elections, it became necessary once again to appoint an Elections Commission and a Chairman since previous Commissions and their Chairpersons were appointed for a single elections. The parliamentary records show extensive engagement among the parties leading up to Act No. 15 of 1995. Introduced as Bill No. 18 of 1995, the Act repealed and re-enacted Article 161 of the 1980 Constitution, providing for a seven person Commission, including a Chairman and six Commissioners, three appointed by the President “in his own deliberate judgement” and three appointed by him “acting on the advice of the Minority Leader following consultation with the parties represented in the National Assembly other than the party to which the President belongs.”
The Explanatory Memorandum to the Bill provided for a chairman appointed by the President from a list of six persons, submitted to the President by the Minority Leader after consultation with the Minority parties in the National Assembly.
Article 161 (1) widened the category of judicial officers – a serving judge, a former judge or a person who is qualified to be a judge – who could be appointed chairman of the Commission. And to pre-empt the possibility of the elections being hijacked by the failure of the Minority Leader to submit a list, Article 161 (2) introduced a proviso to the effect that if the Minority Leader failed to submit a List, the President could choose a Chairman who is a judge, former judge or person qualified to be a judge.
Mr. Ogunseye might be interested to learn that Dr. Roopnaraine in the opening sentence of his presentation on the Bill stated that “we rise today as we have before, to support this Bill, unreservedly, and we do so now.”
Mr. Winston Murray who made the lead presentation on behalf of the PNC in his opening sentence said: “…straight away, I would like to say we of the People’s National Congress support this Bill.”
Roopnaraine and Murray voted with the forty-seven other MPs in favour of the Bill which was assented to by Dr. Cheddi Jagan. Mr. Norton was not a member of the National Assembly at the time, and Mr. Jagdeo was absent on leave.
The 2000 Constitutional Amendment and the 2001 elections
In preparation for the 2001 elections, Bill No. 5, Constitution (Amendment) Bill, 2000 repealed and reenacted Article 161. The Explanatory Memorandum to the Bill in relation to the Chairman states unambiguously:
“There shall be a chairman, who shall be a full-time chairman, appointed by the President from a list of six persons, not unacceptable to the President, submitted to the President by the Leader of the Opposition after meaningful consultation with the non-governmental parties in the National Assembly.”
The Act provided for a permanent Elections Commission, a full-time Chairman and re-designated to Leader of the Opposition but retained everything else. The Bill found favour with Dr. Roopnaraine, though not before he raised three points, none of which touched on the appointment as suggested by Mr. Ogunseye. Mr. Norton did not speak on the Bill but, as hinted by Mr. Ramkarran, was one of the forty-eight MPs who voted for the Bill. .
Of some interest too is the statement made by the itinerant Mr. Moses Nagamootoo, then a PPP MP, who in his presentation expressed the hope that the Bill “will be approved in the spirit in which it came to the Oversight Committee, it will be approved with unanimity, and that we will all have an example today in this House of what we call consensual agreement”.
Mr. Nagamootoo, now in a different role and in a different Party, rejecting the clear intent of the National Assembly of which he was a part, writes in support of the rejection of consensual agreement, and in favour of unilateralism.
Mr. Norton might note that the 2000 Act was assented to by Mr. Samuel Hinds, Prime Minister performing the functions of the President.
To the extent that Mr. Ogunseye referred to a limited set of circumstances, I sincerely believe that it is an honest omission. On the other hand, Mr. Norton carelessly and incorrectly asserts that the clause in question was inserted in Bill No. 2 of 2000 (the Income Tax [Amendment] Bill) which had nothing to do with Article 161. The proviso was inserted by Bill No. 18 of 1995 and enacted in Act 15 of 1995. While accusing others of a passion for power rather than the promotion of democracy, Mr. Norton engages in the elementary error of misstating legislation and making claims that are not simply dishonest and disingenuous, but dangerously so.
Finally, if Norton truly believed, albeit wrongly, that Jagdeo and the PPP laid the basis to move away from Carter Formula, why did he not say so while serving as a member of the National Assembly?