On October 19, 2017 President David Granger appointed 84-year-old former Guyana High Court Justice, James Patterson, Chairman of the Guyana Elections Commission. This appointment, although controversial, was intra vires the constitutional powers of the presidency, pursuant to Article 161 (2) of the Constitution. Justice Patterson’s qualifications are impeccable, with forty years’ experience in the law as a barrister, legal counsel, prosecutor and jurist.
Article 161 (2) decrees two formulae for the President to appoint a Chairman. They are: (I) The President shall appoint the Chairman from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition. Each of the six candidates must either be a judge, former judge, qualified to be a judge or any other fit and proper person. (II) The proviso in Article 161 (2) mandates the President to autonomously appoint a judge or former judge to be chairman, “if the Leader of the Opposition fails to submit a list “as provided for.”
The clause “As provided for” means the Leader of the Opposition must comply with both genres of qualification, ie, (I) each candidate must be a judge, former judge, qualified to be a judge or a fit and proper person, and (II) each candidate must not be “unacceptable” to the President. Neither the Opposition Leader nor the courts can divine who is acceptable to the President. Only the President is empowered by the Constitution to so determine. Thus, a list that does not satisfy these qualifications violates the Constitution and may be “unacceptable” to the President. Futuristically, the Opposition Leader should probably consult the President on names in deliberation to secure a preliminary agreement first, before the formal submission.
Dr Steve Surujbally resigned as Chair-man on November 30, 2016, creating a vacancy. The President caused Opposition Leader, Mr Bharrat Jagdeo, to submit a list as provided for in Article 161 (2). The Constitution mandates “a list”, meaning one list of six names. President Granger rejected the first list Mr Jagdeo submitted but thereafter allowed him to submit two additional lists. (I believe this was an error and an extra-constitutional act). Mr Jagdeo apparently engaged in brinkmanship to limit the President’s selection to persons of a sympathetic political persuasion, and not the ability to dispassionately and impartially execute the law. Consequently, the President rejected all three lists, thereby triggering the proviso.
The mandates in Article 161 (2) have unambiguous, dual applicability. The President is compelled to appoint a chairman and the Opposition Leader is compelled to submit a list “as provided for.” Additionally, the article grants the President a provisional mandate to, “if the Leader of the Opposition fails to submit a list as “provided for,” supersede the main provision and autonomously appoint a judge or former judge to be chairman. Justice Patterson’s appointment, therefore, was by fiat of this proviso. The obvious ratiocination is that the proviso vitiates the preceding provision if the Opposition Leader either (I) fails to submit a list; (II) fails to submit a list of persons with the enumerated qualifications; or (III) fails to submit a list of names that are acceptable to the President. Any or all of these failures is a breach of the Constitution.
The commission comprises seven members: three from the government, and three from the parliamentary opposition. The chairman ‒ a creature of the aforementioned bipartisan process ‒ is intended to be independent. These extant laws, derive from a 1992 modus vivendi (the Carter formula), which were intended to foster engagement and consensus between the government and opposition, to import bipartisan confidence into the electoral process. These terms were enshrined in the Constitution in 1996 and enhanced in 2000, to fully realize the original intent. Consequently, the lack of consensus between the President and Opposition Leader has inevitable consequences: (I) the list will be rejected and (II) that rejection automatically triggers the proviso which compels the President to act independently of the Opposition Leader.
The Opposition Leader cannot for the sake of political expediency breach the Constitution by abdicating his responsibilities, and then demand that the President countenance his violation by accepting the defective list. The law expressly directs the President to pursue an alternate process if the list is not acceptable. That is, to invoke the proviso to guarantee continuity of governance at the commission. Ironically, the proviso was enacted during Jagdeo’s presidency.
My own view is that although Justice Patterson has expansive knowledge of, and fidelity to, the rule of law and is fully qualified for the position, a younger person, who is similarly qualified, should have been appointed. The Granger administration demonstrates a troubling appetence for abandoning qualified younger people in favour of the dinosaur class. This will continue to fuel the brain drain among young people.
Mr Jagdeo has launched a campaign to assassinate Justice Patterson’s character, and is engaging in demagoguery to engineer polarization. The Granger administration’s response has been pathetic and nugatory. The void has only enabled Mr Jagdeo’s echo chamber. Mr Jagdeo apparently believes he has a juridicial right to appoint the chairman, and has petitioned the Supreme Court to uphold that presumed right. He has also threatened to take to the streets. The work of the Elections Commission must proceed. Mr Jagdeo will protest if he must. That is his constitutional right!
Caribbean Guyana Institute for Democracy