It is rather unfortunate that the ruling by Chief Justice (ag) Roxane George has not brought closure to the matter that has vexed our nation since the beginning of this year – -the selection of a chairman of GECOM. The facts are too well known to be rehearsed save for the actual statement of the constitutional Article that governs the issue.
Article 161 (2) states, “Subject to the provisions of paragraph 4, the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly.
“Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge …”
After Opposition Leader Bharrat Jagdeo had submitted two lists that were summarily dismissed by President David Granger, based on his own idiosyncratic interpretation of Article 161 (2), a private citizen, Marcel Gaskin, took the matter to the High Court to have a conclusive interpretation. This the Chief Justice just did and concluded that the contention the President had been making from the beginning – namely that the nominated individuals must either be an ex-judge or a person qualified to be a judge – was not correct.
While we do not have a written explication of the judgement, it was clear to most that since the prior rule on selecting the GECOM Chair specified he/she be a judge, and this was being altered, the prior rule could not have been left intact. The Judge agreed that the stipulation of any other “fit and proper” person – of which a judge could be one specimen – would satisfy the condition. This, of course, was the common sense interpretation based on the intent of the framers in 2000 and their subsequent utilisation of the clause. We do not have to get bogged down in arcane arguments about constitutional “originalism” when the intent and application are so fresh. To have ruled otherwise would have made the law an ass.
The CJ’s ruling that the President must clearly state why any name submitted on a list was rejected is very useful, since even though he has provided a set of criteria, a court may have to interpret whether he is being arbitrary and capricious in his rejection. Thus, while it is within the right of the President to reject any or all names on a list, his rejections are not unfettered.
But there is one matter which has already been raised by the plaintiff, who is awaiting the written judgement to ensure the verbal articulation was not ambiguous. This is when the acting Chief Justice purported to answer a question that was not posed in the pleadings, concerning the options available to the President after a rejected list. As has been stated by legal luminaries, this is obiter dicta – irrelevant in this case and not binding on any subsequent pleadings.
However, it does signal how the CJ would rule in the event the President uses this option, which it appears certain he would. But, once again, the rule for the President to unilaterally choose a GECOM chair is clear from Article 161 (2) – “Provided that if the Leader of the Opposition fails to submit a list as provided for…” Not if the President rejects all names on a proffered list, even with reasons provided. To allow the President to benefit from his own artifice, would be to degut the intent of Article 161 (2).