Bar Association urges President to uphold Court’s ruling

The Guyana Bar Association (GBA) is calling on President Granger to uphold the declaratory orders handed down by the Chief Justice in Monday’s High Court ruling on the interpretation of the Constitution in regard to the requirements of nominees for the Chairmanship post of
The Guyana Elections Commission (GECOM).
This call comes in light of recent comments made by President David Granger following that ruling.
“The Bar Council is confident that, like in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the Chief Justice,” the Association said in a statement on Saturday.
Local businessman Marcel Gaskin had in March moved to the High Court to challenge the constitutionality of President David Granger’s reasoning behind his rejection of Opposition Leader Bharrat Jagdeo’s first list of six nominees for the GECOM Chairmanship post. Jagdeo has since submitted a second list, which the Head of State also rejected; and the two subsequently agreed for a third list to be prepared. That process is still ongoing.
In the court action, Gaskin sought a declaratory order from the Court on the meaning of Article 161(2) of the Constitution, which provides for the appointment of the Chairman of the Elections Commission. The businessman, who is the brother of Business Minister Dominic Gaskin, wanted to know whether the list of nominees to be submitted by the Opposition Leader must include a judge, a retired judge, or a person qualified to be a judge, as being claimed by the President.
However, acting Chief Justice Roxane George-Wiltshire, SC, has overruled the President’s interpretation of the Constitution, finding that there is no particular preference for the appointment of persons within the Judiciary for the GECOM chairmanship.
In her determination, Justice George found that there was no valid argument to support the idea that the Chairman should be a judge, former judge, or person eligible to be a judge, and noted that persons from each category are equally eligible for the post.
The Chief Justice pointed out that the word “any” in the other category, “…any other fit and proper person”, widens the category and “does not restrict the qualification or profession” from which the nominee should be drawn. She added that there was no mandatory category, and all the categories have equal weight.
Reacting on Wednesday to the Court’s decision, President Granger noted that while the acting Chief Justice has a right to give her interpretation of the law, he would continue to act in accordance with his interpretation of the Constitution in regard to the appointment of a chairman for GECOM, and will not appoint anyone whom he believed unfit for the post.
“That is to say, I will not appoint somebody whom I don’t consider to be fit and proper,” he clarified.
Asked if he would now give reasons for rejecting the names on the two lists submitted by the Opposition Leader, Granger said, “If you could show me the Article of the Constitution which requires me to give reasons, I will comply with the Constitution; but I will not do what the Constitution does not require me to do. I do not believe that anything the Chief Justice said has diminished my regard for the word and spirit of the Constitution.”
The Bar Council has outlined that the declaratory orders made by the Chief Justice based on her application of principles of law are not interpretations or opinions, but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.
The GBA explained that the leading legal treatise on this type of order describes the effect of a declaratory order in the following terms: “…whilst the defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings.”
According to the Bar Association, the treatise makes it clear that the refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration.