…Opposition Leader feels vindicated, but says ruling constitutes ‘obiter dicta’
Acting Chief Justice Roxane George, SC, on Monday overruled President David Granger’s interpretation of the Constitution regarding the appointment of a chairman for the Guyana Elections Commission (GECOM), finding that there is no
particular preference for the appointment of persons within the Judiciary. While this deduction was welcomed by complainant Marcel Gaskin, he felt that the honourable Chief Justice erred in a section of her ruling, where, according to him, she went beyond what was asked of the court.
In her determination, Chief Justice (ag) 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. However, in an issued statement after the ruling, Gaskin highlighted that the acting Chief Justice went to address the proviso to Article 161 (2) which applies to instance of the Opposition Leader failing to submit a list.
“This was never an issue for us since the Leader of the Opposition submitted not one but two lists of persons for nomination as Chairman of GECOM. Unfortunately, by extending herself beyond the requirement of my case, the Madame Chief Justice made a gross error in ruling that the President is not obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable (sic) as a fit and proper person for appointment,” Gaskin pointedly stated on Monday.
His statement categorised that subsidiary aspect of the ruling as a non-sequitur (does not follow), which, in his opinion, creates “unnecessary misunderstanding and confusion”. In this light, Gaskin disclosed that he gave his attorneys instructions to “immediately lodge a Notice of Appeal”.
Included in Justice George’s ruling on Monday was that the persons proposed for the post of GECOM Chairman must have judge-like qualities and possess integrity, honesty and impartiality. She also said 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, and noted that there was no mandatory category and all the categories have equal weight.
In March, Gaskin, a local businessman and brother of Business Minister Dominic Gaskin, had moved to the High Court to challenge the constitutionality of President Granger’s reasoning behind his rejection of Opposition Leader Bharrat Jagdeo’s first list of six nominees for the GECOM chairmanship. Jagdeo had submitted a second list, which the Head of State also rejected. A third list is slated to be presented.
In the court action, Gaskin sought a declaratory order from the Court as to 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.
Since the matter was filed, the acting Chief Justice heard submissions from the various parties, which included Gaskin’s lawyer Glen Hanoman. President Granger, however, held out that Article 161 (2) of the Constitution prescribes for the Chairman of the Elections Commission to be “a person who holds or who has held office as a judge of a court…or who is qualified to be appointed as any such judge, or any other fit and proper person…”
Having interpreted “fit and proper” to mean another group of qualified persons, the Opposition Leader in December submitted his first list and nominated: Attorney and Chartered Accountant Christopher Ram; Conflict Resolution Specialist Lawrence Lachmansingh; retired Major General Norman McLean; business executive Ramesh Dookhoo; Indian rights activist Rhyaan Shah, and History Professor, Dr James Rose for the post at the helm of GECOM. However, the Head of State rejected that list on his aforementioned grounds.
Following weeks of impasse, Jagdeo finally agreed to return to the drawing board and submitted a new list of nominees. Consultations were held for several weeks with civil society representatives, since there were difficulties in conforming to the criteria outlined by the President. Nevertheless, Jagdeo had submitted a second list of six nominees for the post of Chairman of GECOM to the Head of State in April. The nominees were: retired Justice of Appeal BS Roy; retired Justice William Ramlall; former Magistrate Oneidge Walrond-Allicock; Attorneys Kashir Khan and Nadia Sagar; and businessman and pilot, Captain Gerald Gouveia.
Again, President Granger rejected the list, saying that it was “unacceptable” and reiterated his stance that all of the nominees should be a judge, retired judge, or qualified to be a judge.
Meanwhile, at the High Court on Monday, Justice George nullified the arguments made by the Attorney General’s Chambers, saying that the President needed to give good reasons for rejecting all or any nominees. This, she said, will be in furtherance of democracy and good governance. Should the Head of State present his reasons for rejecting the nominees, it would give an indication of who is acceptable.
She also said if one of the six nominees was acceptable, one would expect that the person would be appointed to the position of GECOM Chairman as there is no need for everyone on the list to be acceptable. She said, however, that the President has the discretion to reject the entire list.