Former AG says Chief Justice’s ruling marred by single error

GECOM Chair impasse

– hopeful that written ruling will bring greater clarity

While describing the ruling on President David Granger’s interpretation of the Constitution regarding the appointment of a chairman for the Guyana Elections Commission (GECOM) as brilliant and juridically sound, former Attorney General and Legal Affairs Minister Anil Nandlall said, however, the ruling was marred by a

singular error.

In providing his opinion, Nandlall said acting Chief Justice Roxane George appeared to have ventured beyond the purview of her remit and expressed an opinion on an issue that was not before the court for its interpretation and by extension, its adjudication, ie, the proviso to Article 161(2) of the Constitution.

“The learned Chief Justice is reported to have said, as part of her ruling, that if the President finds all six names unacceptable, the proviso becomes applicable, meaning, that he can appoint a person of his own choosing,” he added.

The former AG argued that this issue was not before the High Court and was not part of the questions posed by the applicant, Marcel Gaskin, for the Court to answer, neither himself, as the lead Attorney-at-Law for the Leader of the Opposition, nor any of the Counsel appearing for the other parties to the

proceedings made any submissions on this issue or was invited to do so by the Court. As such, several parties have expressed surprise at the particular pronouncement by the acting Chief Justice. He said, “In my respectful and considered view, that proviso can only be activated when, through the default of the Leader of the Opposition, no list is submitted to the President.

In such a case, and by virtue of the proviso, the President is authorised to select a person of his own choosing.”

This, according to him, is so because the Constitution would not allow a default by one person to cause such a crisis where no one could be appointed to chair GECOM. Nandlall said the Constitution, like any such fundamental document, was replete with such crisis-avoidance mechanisms.

Further, the former Minister said he could only conclude that Gaskin did not make the proviso part of the proceedings in recognition of the fact that the Leader of the Opposition had already submitted a list of names to the President, which the President had rejected and had invited another six names at the time of the filing of the application, thereby rendering the application of the proviso inoperable in the unfolding factual matrix.

In the circumstances, therefore, Nandlall said the Judge’s opinion on the proviso was merely “obiter dicta” (said by the way) and did not form part of the “ratio decidendi” (or the binding part) of her judgment. “I am hoping that when the written ruling is made available it brings greater clarity to the matter,” he said.

Nevertheless, Nandlall acknowledged that every argument which the Opposition has advanced publicly over the past months and every submission it presented to the Court were upheld. He went on to state, however, that almost every argument articulated by Attorney General and Legal Affairs Minister Basil Williams publicly over the past several months on this issue and which were made part of his submissions to the Court were roundly and comprehensively rejected.

In her determination, the acting Chief Justice found that there was no valid argument to support the idea that the Chairman should be a judge, a former judge or a person eligible to be a judge, and noted that persons from each category were equally eligible for the post.

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 had 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.