AG, Nandlall to spar over constitutional interpretations

GECOM chairmanship

… meeting date still to be set

Attorney General and Legal Affairs Minister Basil Williams is expected to face off with his predecessor Anil Nandlall in a vociferous debate over the interpretation of the Constitution of Guyana regarding the appointment of a Chairman of the Guyana Elections Commission (GECOM) – a process which previously never attracted this magnitude of complexity, confusion and controversy.

Nandlall told Guyana Times on Saturday that he will dispatch a correspondence to the Attorney General on Monday, requesting a suitable date for the proposed meeting to discuss this contentious issue, which has begun to excite fears of rigged elections.

The meeting, which will most likely be behind closed doors, would be aimed at clarifying Government’s interpretation of the Article 161 of the Constitution relative to the appointment of a GECOM Chairman and to determine what can be constituted as “fit and proper”.

It is hopeful that at the end of the engagement, there will be a consensus between both parties on what is required for the appointment of a new GECOM Chairman.

New list

Opposition Leader Bharrat Jagdeo told media operatives on Friday that he would consider submitting a second list, depending on the outcome of the meeting between the Attorney General and his representative.

“After that meeting, should I have to submit a new list, I would probably consult broadly again with people so that I can get the best names to go forward,” he explained, noting that this is just a hypothetical situation.

Jagdeo reminded that the purpose of the meeting he had requested was to expose President David Granger to a different interpretation from what is being fed by his Attorney General regarding the Constitution.

But since this meeting was rejected, Jagdeo said he will participate in the proposed engagement in keeping with the best interest of the country.

The issue was ignited when President Granger, during an engagement with media operatives, announced that he has rejected the list of six nominees submitted by the Opposition Leader for consideration for the appointment of a new GECOM Chairman following the resignation of Dr Steve Surujbally from that post in November last.

Granger argued that the names submitted by the Opposition Leader did not meet the constitutional requirements of being “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…”

Afterwards, the President officially informed the Opposition Leader of his rejection and requested that a second list be submitted.

Jagdeo subsequently requested a meeting with the Head of State to clarify the interpretations of the Constitution as he believed his nominees were constitutionally suitable for the post – especially in light of the widespread consultations he hosted prior to compiling the list.

After a prolonged period, President Granger finally responded, indicating that he will appoint his Attorney General to engage with any member of the Opposition on the matter. In his letter, the President did not offer any clarity on his interpretation of the Constitution nor did he explain why the nominees submitted were “unacceptable” as he claimed.

Interpretations

The Opposition’s interpretation of the Constitution conforms to the updated version, which incorporates the Carter Formula to have a democratic process for the appointment of a Chairman.

The Carter Formula is designed and intended to achieve consensus between Government and the Opposition regarding the appointment of GECOM’s Chairman.

Granger’s interpretation on the other hand seems to reflect the old 1980 Constitution, commonly known as the “Burnham Constitution”, which limits the pool of persons to be appointed to GECOM’s helm to only Judges or those eligible to be a Judge. This version of the Constitution also gives the President the power to unilaterally appoint a GECOM Chairman.

Already, both Attorney General Basil Williams and Vice President Khemraj Ramjattan have signalled Government’s intention to activate a clause in the Constitution to allow the President to unilaterally appoint a GECOM chair.

However many view such a move as dangerous, as it alters the democratic process regarding the appointment of a person to be tasked with overseeing the elections process in the country.

But Jagdeo contends that Government’s interpretation of that clause is also erroneous.

Perspective

Another perspective on the issue was proffered by Professor Duke Pollard, a retired Justice of the Caribbean Court of Justice (CCJ), who contends that “The employment of the pronoun “other” speaks volumes and must be interpreted to mean that such “other fit and proper persons” must possess the characteristics of the two-named preceding persons. It is clear, therefore, that though not alluding to it expressly, the learned professor is employing the “ejusdemgenris” rule in his interpretation of Article 161(2).”

But Nandlall, during a public forum on Friday evening on the matter, asserted that such a perspective is flawed especially since the “ejusdemgenris” rule does not apply in Guyana. (Devina Samaroo)