CCJ rules James Patterson appointment as GECOM Chair flawed, unconstitutional

Landmark decision

…confirms President has to give objective reasons for rejecting nominees

In a landmark ruling issued on Tuesday, the Caribbean Court of Justice (CCJ) has ruled that the appointment of retired Justice James Patterson as Guyana Elections Commission (GECOM) Chairman was flawed and unconstitutional.

A summary of the court’s judgement was handed down by President of the CCJ, Justice Adrian Saunders, who announced the court had decided that the process to appoint the GECOM Chairman was “fatally flawed”.
He recommended that in future the Leader of the Opposition and President communicate and meet in good faith to discuss eligible candidates before a list is submitted. The court also recommended that moving

forward, all parties work together, as the constitution envisions, to select a Chairman.
Saunders also declared in the ruling that before President David Granger rejected persons nominated by Opposition Leader Bharrat Jagdeo, reasons should have been given for the rejections in the interest of transparency.
According to Saunders, the President gave no specific reason for refusing to appoint a Chairman from the lists submitted by Opposition Leader Bharrat Jagdeo. Saunders noted that the President disapproved a third list, without giving a specific reason.
Saunders referenced historical facts pertaining to the

previous appointments of GECOM Chairmen. He cited the recommendations made by the Constitutional Reform Commission in 1999, that the Chairman should be appointed through consultations.
“In determining the main issue in the case, the Court looked first at the proper meaning of Article 161(2) of Guyana’s Constitution. That Article sets out the requirements to be satisfied for a person to be eligible for appointment as GECOM Chairman. It also sets out the general process for selecting the Chairman,” Saunders said.
“To determine the meaning, the Court looked at the drafting history of Article 161(2), observing that changes had been made to it to promote consensus and inclusiveness by involving the Leader of the Opposition in the selection process.”

Transparency
The judge noted that the President relied on the provisions that gave him discretionary powers and insulated him from providing an explanation for excluding the Opposition leader from his final decision.
Saunders said that giving the President the power to reject candidates without giving reason will frustrate what the constitution contemplates. In fact, the court decided that the President has a duty to give reasons for rejecting names in the interest of transparency.
“The Court therefore found that the process was flawed and in breach of the Constitution. In a concurring judgment, Mme. Justice Rajnauth-Lee stated that by giving reasons why nominees are rejected, the President will engender greater public trust and confidence in the Elections Commission.”
The Court concluded that the most sensible approach to the process of appointing the Chairman of GECOM is for the Leader of the Opposition and the President to communicate with each other in good faith and, perhaps, even meet to discuss eligible candidates for the position of Chairman before a list is submitted formally.”
Saunders explained that the Court also considered objections made by Attorney General Basil Williams but found them without merit. He noted that the court found the appointment could be enquired into by the court and that such actions could be reviewed by a court. He stressed that the court has jurisdiction to hear the concerns of citizens on these matters.
This case was heard by the CCJ on May 8 and was brought by People’s Progressive Party’s (PPP) Executive Secretary Zulfikar Mustapha. Mustapha challenged the appointment of Patterson who was appointed to the position of Chairman of GECOM in October 2017.
At the time, President Granger had already rejected three lists submitted by Opposition Leader Bharrat Jagdeo. These lists comprised a total of 18 names of former Judges, persons eligible to be judges and prominent members of civil society.
List of nominees had included anti-corruption advocate Christopher Ram, current Bar Association president Teni Housty, former GECOM Chairman, Retired Major General Joe Singh, Justice of Appeal B.S Roy (ret’d), Justice William Ramlall (ret’d), Oneidge Walrond-Allicock, Attorney-at-law and a former Magistrate, Mr. Kashir Khan, Attorney-at-law, Ms Nadia Sagar and Gerald Gouveia.