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GECOM unilateral appointment case
The hearing into the unilateral appointment of the Guyana Elections Commission (GECOM) Chairman began at the Caribbean Court of Justice (CCJ) on Wednesday with lawyers arguing that President David Granger must explain his reasons for rejecting the lists of nominees, lest he be deemed to be abusing his powers.
This argument was put forward by Trinidadian Senior Counsel Douglas Mendes, who is appeared on behalf of Opposition Leader Bharrat Jagdeo. According to Mendes, the appointment of retired Justice James Patterson was not only a departure from tradition, but also procedure.
Mendes pointed out that previous Chairmen were appointed from lists put forward by the Opposition Leader. He noted that on the face of it, Jagdeo generally submitted eligible candidates to the President and thus, their rejection despite the Constitution requires an explanation.
The Senior Counsel said in the absence of a valid reason from the President for rejecting the lists, one can assume there is none and the decision is therefore arbitrary. He noted that in such a case where procedure was not followed, the appointment must be set aside and the procedure followed.
“What we are saying of course is that even though there were three tries, there was not the level of consultation that Article 161 (2) envisioned, so that there was a realistic chance that the Leader of the Opposition would be able to put forward a list not unacceptable… the Leader of the Opposition did his best to comply with those qualities, only to find the President saying, well you didn’t meet those qualities at all,” Mendes said.
“If the Leader of the Opposition (had) insisted on putting persons on the list who plainly are unacceptable because they are party stalwarts for example, then the President would be quite justified in saying (to Jagdeo), you have not provided a list not unacceptable to me, you are abusing the process by trying to force me to appoint someone who will favour you, therefore I’m going to the proviso,” he added.
At this, President of the CCJ, Justice Saunders noted that no one would know this unless the President gave reasons for rejecting qualified candidates for the post, to which Mendes agreed. Saunders acknowledged that whether the nominees were acceptable to the President is a subjective issue and as such, details on why the previous candidates were rejected would have been helpful.
Justice Jacob Wit noted that there could have been discussion before the names were formally submitted, where the Opposition Leader could have suggested names of possible candidates to the President, as part of prior consultation. Mendes noted while this could have happened, this was not the case in Guyana.
When asked about the criteria for rejecting a candidate for the post of GECOM Chairman, Mendes noted that besides possible links to a political party, a person’s age, mental agility and health would be obvious factors in determining whether a Chairman is unacceptable or not.
Mendes emphasised that Jagdeo did his best to comply with the constitutional provisions, by including persons who both fell into the judicial and the eminent persons’ categories. And the Senior Counsel informed the court that if the President repeatedly rejects nominees who meet his own stated criteria for selection, then he must explain why so that observers can analyse whether he is abusing his power or not.
Mendes also suggested to the court than in case the CCJ rules Patterson’s appointment unconstitutional and subsequently rules that the No-confidence Motion was validly carried, the court may suspend its previous ruling to ensure there is no disruption at GECOM. The Senior Counsel noted that there was precedent for this.
Not a Kingdom
When the Government side had their chance to present their case to the court, Queen’s Counsel Ralph Thorne – appearing on behalf of Attorney General Basil Williams – had a rough time before the CCJ Justices. This was as he tried to argue that the court ought not to intervene in the constitutional appointment of Patterson.
However, Justice Saunders rebuked the counsel for seemingly implying that the President can appoint whosoever he wishes. Saunders reminded the flustered lawyer that constitutional provisions have mandated that the President has to select someone “not unacceptable” from the lists supplied by the President.
Justice Wit noted that based on the State’s arguments, it would therefore mean that the President can appoint whosoever he wants; a situation that previously existed before the constitutional amendments of 2000. Wit noted that he had difficulty accepting this.
“What the other side (Mustapha) is in effect doing, the other side is in effect saying that the Leader of the Opposition can and must always get their man. And that cannot…” Thorne argued, trailing off.
“(in other words) the other (side) can, because he’s playing a guessing game, he doesn’t know what the President wants, so he puts forward lists that are all rejected, not knowing who the President (wants). So the President can always get his man or woman. Is that what was intended by the amendment?” Justice David Hayton asked the lawyer.
Justice Wit noted that the Guyana Constitution allows the President to use his discretion based on his deliberate judgement, not based on his whims. The justice noted that the CCJ must not only deal with the letter, but also the spirit of the Constitution.
But Thorne noted that the lower courts in Guyana had found that even though reasons were not given, the Judge found that the appointment was valid. He was reminded by the Justices, however, the Guyana is “a Republic, not a Kingdom” and as such, everyone is subject to the law.
Unrestrained
Meanwhile, Thorne’s partner, Queen’s Counsel Hal Gallop, noted that the President’s discretionary powers are only reviewable if it was used illegally, irrationally and without following procedure. But he noted that in absence of this, the President’s discretion should be unrestrained.
However, the court questioned whether the President did follow the proviso. When Gallop replied in the affirmative, the court questioned how the Opposition Leader failed in his duty to supply a list, which was one such proviso.
“How do we know on what basis these names were not acceptable,” Saunders questioned, after being told the President is not entitled to give reasons. To this, Gallop reiterated that the Constitution does not say that the President has to give reasons for making his appointment outside the list.
Arguing that if the President gave reasons for every decision he made then his powers would be restricted, Gollop compared this scenario to a Judge having to give reasons for every decision he makes.
This is despite the fact that Judges give pages of reasons for their decisions. However, the President has steadfastly refused to provide substantive reasons for rejecting the list or even exactly who is not ‘fit and proper.’
In total, the Opposition Leader submitted three lists of nominees, totalling 18. All three lists were rejected by Granger, who then appointed Patterson in 2017. The CCJ is expected to announce a date for their ruling in the matter shortly.
