The circumstances and justification for President David Granger’s rejection of three lists of candidates for Chairman of the Guyana Elections Commission (GECOM) was one of the areas that CCJ judges yesterday grilled the government’s lawyers about.
The Caribbean Court of Justice (CCJ) yesterday morning heard oral arguments in the appeal filed by PPP executive Secretary Zulfikar Mustapha, to President Granger’s unilateral appointment of retired judge James Patterson, as Chairman of GECOM.
Having completed those hearings, the Trinidad-based court of last resort for Guyana announced that the parties will be informed as to when its decision will be delivered.
During the almost 4-hour hearing, Mustapha’s attorney, Douglas Mendes SC, sought to maintain his client’s previous position that the president’s resort to the proviso in Article 161 (2) of the constitution for unilateral appointments, was unlawfully done, especially since the Head of State provided no reasons for rejecting the names of 18 nominees submitted to him for consideration by the Leader of the Opposition.
Representing the government against whom the action is filed, however, Barbadian Queen’s Counsel Ralph Thorne sought to argue that the acceptability of a candidate for the post is left solely for the president.
According to him, once the president finds the names submitted to him as being unacceptable, he could thereafter reject the list and not give reasons for the rejection.
But in the same vein, arguing that the appointment is solely for the president, Thorne also said that even if the opposition leader were to present a list of acceptable candidates to the president, the president can still reject all the names put forward and still not have to give reasons.
It was at this point that President of the court, Justice Adrian Saunders said that he was not following counsel’s argument and sought clarification, which Thorne seemed unsure to provide.
In his attempt at providing an answer during constant pauses, for which Justice Saunders had to ask him to “just answer the question,” the Queen’s Counsel sought to argue then when Article 161 (2) speaks of a list “not unacceptable” to the president, it means just that, in its plain literal sense.
Justice Saunders then asked counsel whether it were to be gleaned from his reasoning that the president would still be at liberty to reject a list submitted to him which possessed candidates with criteria acceptable to him, (the president).
To the visible surprise of the entire Bench, Thorne responded in the affirmative.
Article 161 (1) provides for an elections commission, while subsection (2) provides for the criteria for an acceptable candidate as well as the proviso.
The former states, “There shall be an Elections Commission for Guyana consisting of a Chairman, who shall be a full-time Chairman and shall not engage in any other form of employment, and such other members as may be appointed in accordance with the provisions of this article.”
Article 161 (2) meanwhile, provides, “Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be a person who 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, to be appointed by the president from a list of six persons, not unacceptable to the president, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly: provided that if the Leader of the Opposition fails to submit a list as provided for, the president shall appoint a person who holds or 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.”
To Mendes’ argument that the constitution envisions a collaborative effort through meaningful consultation where both the president and opposition leader enjoy the confidence of the candidate chosen, Thorne again said that “acceptability of a candidate” is to be subjectively left only for the president.
Justice Saunders then asked whether this subjective exercise should not be guided by objective considerations. Justices Winston Anderson and Jacob Witt at this point also enquired whether the entire process should not be guided by consultation between the two sides as the constitution envisions.
In response, while on the one hand Thorne agreed that the subjective exercise should be done in an objective manner, he said that the meaningful consultation between the president and opposition leader should come after the submission of the list by the latter.
Again to the visible surprise of the Bench, however, Justice Anderson enquired what would be the point of having consultation after the list is already submitted and rejected by the president as had been done, more so without the giving of any reasons for that rejection.
Given that the opposition leader had submitted a list—first with six names as is constitutionally required of him, and then later an additional 12 names in two other lists, Justice Anderson sought to find out from Thorne, the sense of consultation coming after the first list which he (Thorne) said was the only one which ought to have been considered by the president after which he could invoke the proviso once he found persons unacceptable to him there.
Thorne then went as far as to say that even if there is at least one person on that list acceptable to the president, and the other five are unacceptable, he can still reject the entire list and not have to give reasons.
Justice Saunders then asked counsel if it would be possible for the president to provide to the opposition leader a particular set of criteria of what he considered to be a person not unacceptable to him, and then thereafter come up with additional criteria which he does not communicate to the opposition leader, and still reject the list on that basis.
Solely
Again holding to the view that the acceptability element is solely for the president’s subjective consideration in the selection process, Thorne told Justice Saunders that in the scenario he outlined, the president would also be at liberty to reject a list on such grounds.
Justice Anderson then asked whether “responsible adults,” should not strive for consultation in such a process, to which Thorne said yes, but stressed that it has to come after the submission of the list.
Noting that Articles, 161 (1) and (2) represented amendments to the old law which had provided for only a president to choose a Chairman of GECOM, Justice Saunders, enquired from Thorne what would then be the defect the new law seeks to remedy, if essentially the president can again simply reject a list without proffering reasons for his resort to the proviso.
“Would it not amount to the president again just choosing whomever he wants, if there is no way of the opposition leader, public, court or anyone knowing why the list was rejected,” the judge asked.
In his presentation, Thorne advanced that Article 161 is not enforceable by the courts and is one such instance in which the court will not intervene. Justice Saunders, however, tried to get from Thorne if he was attempting to say that the court could not intervene in the appointment made by the president.
The Queen’s Counsel stopped short of saying it was, but said that the court should intervene only where “on the face of it there is some illegality or irrationality.”
This response then prompted to judge to enquire how it is that the court would know there exists any such defect in the president’s actions, if in the first place, as Thorne suggested, the court should have a non-intervention role in such cases.
Justice Anderson had expressed the view that it was quite unfortunate that the two sides could not have meaningful consultation to avoid the current saga. He said he did not think that either sides should want the court to have to intervene in such a matter and that they both therefore, should have tried to reach a consensus on the appointment.
Duty bound
But where this cannot be reached, the judge said that the court would be duty bound to pronounce on the matter.
While Thorne accepted the court’s view that the president’s actions or that of any public official are reviewable, he still contended that the court ought not to intervene in the case before it.
As Thorne had advanced, Queen’s Counsel Hal Gollop who also represented the state and Attorney General of Guyana’s interest, argued that there is no requirement in the provisions for the president to provide reasons for his rejection of the list.
He said that Justice Patterson’s appointment should be made to stand since the president in no way acted “illegally, irrationally or with procedural impropriety,” which would bring the unfettered discretion he exercised, into question, thus requiring the appointment to be set aside.
Asked how it is that the court would know that the president acted in accordance with the constitution when no reasons are given by him, Gollop told Justice Anderson that it was not for anyone to know why the president rejected a list.
“It is his sole unfettered discretion,” Gollop said.
Against this background, Justice Saunders then asked counsel what therefore made the amendments different to the law that existed before where the president alone could appointment a Chairman to GECOM.
Gollop, however, held to his view that there was no requirement for the president to provide reasons, while noting that case law so reflects.
In his presentation to the court, Mendes argued extensively that the constitution envisioned a process of consultation between the president and opposition leader in the selection of a Chairman of GECOM—as opposed to what was required under the old law where only the president made that selection.
But the lawyer said that this process of consultation can only work if the president gives reasons for his rejection of a list which would in turn inform the opposition leader’s decision on the persons shortlisted for the post, which the president would not find “not unacceptable.”
Outside of this, Mendes said it would be a “guessing game” which the opposition leader would be embarking on in the submission of a list acceptable to the president. He also underscored the need for “good faith” between the two sides in the selection process.
To the state’s case that notwithstanding three lists that had been submitted to the president for his consideration though he was only required to consider the first of six names, after which he was entitled to resort to the proviso if he found it to be unacceptable to him, Mendes said that while the constitution referred to “a list,” it did not mean that the opposition leader had only one opportunity to submit a list.
He said it was for this reason that 12 additional names had been added for the Head of State’s consideration after he rejected the first six names submitted to him.
Article 161 (2) provides for the appointment of a Chairman based on a consensual process in which a list of six persons, “not unacceptable to the president,” is submitted by the opposition leader. The proviso allows for the appointment to be made unilaterally, where the opposition leader fails to submit a list “as provided for.” Opposition Leader Bharrat Jagdeo submitted three lists, which were all rejected by Granger.
The case before the CCJ is being heard by Justices Saunders, Anderson and Witt along with Justices David Hayton and Maureen Rajnauth-Lee
Following the appointment and swearing-in of the 84-year-old Justice Patterson back in 2017, Mustapha filed an application, contending that the president had no power to make a unilateral appointment once a list of six names had been submitted to him. He made this argument while noting that the head of state had failed to give reasons for naming Jagdeo’s 18 nominees as unacceptable.
Mustapha was seeking orders directing President Granger to choose a person from the 18 names submitted to him by Jagdeo and an order rescinding, revoking, cancelling and setting aside Justice Patterson’s appointment.
Attorney Anil Nandlall who also represents Mustapha, had previously contended that the proviso takes effect only in the event where the opposition leader does not supply a list of nominees, while also claiming that the president was duty-bound to state reasons for rejecting the list provided to him.
The state had argued that the proviso was lawfully resorted to by the president and that in the absence of any impropriety, the president is not bound to provide reasons for rejecting the list. It argued, too, that the president did not act capriciously, with impropriety or in any partial manner in his rejection of the list.
Handing down its ruling in October of last year, the Guyana Court of Appeal upheld the legality of President Granger’s unilateral appointment of Justice Patterson, saying that he did not act unreasonably in doing so.
The court disagreed with arguments advanced by Mustapha that President Granger’s resort to the constitutional proviso in Article 161 (2) for the unilateral appointment of Justice Patterson was unlawfully invoked and resultantly dismissed his appeal to a previous ruling of acting Chief Justice Roxane George SC.
