GECOM’s Chair decision: Avoiding judicial responsibility

Pronouncing her judgement on the case brought by PPP representatives — for a declaration that President David Granger’s rejection of the Opposition Leader’s three lists of names to fill the vacancy in the Chairmanship of GECOM, and his subsequent unilateral appointment of Justice James Patterson to the position was unconstitutional — Chief Justice (ag) Roxane George-Wiltshire declared: “I hold that there is nothing before this court to permit a finding that the President acted unlawfully or irrationally in resorting to the proviso to Article 161 (2) [of the Constitution].” This newspaper finds this decision both inexplicable and unfortunate, given the crucial role of the GECOM Chair to give legitimacy to the decisions of the elections body that determines who governs Guyana. Given the polarised nature of the Guyanese electorate, and that this polarisation is based on ethnic identity — which is very volatile, since it goes to the heart of group worth and control of the patrimony of the state — any decision which sidesteps this need for legitimacy based on consensus between the parliamentary parties has to be seen as retrograde; and, in fact, wilfully so. In the lead-up to the 1992 “free and fair” elections, the Carter Center brokered an agreement between the political parties, including the then incumbent PNC, to constitute an elections commission to address concrete lapses in pre-1992 elections that were attributable to a malfunctioning institution, especially attributable to a partisan Chairman. The six Commissioners of GECOM in the Carter Formula are overtly partisan – three from the Opposition parties and three from the governing parties. The Chairman, then, with his casting vote, becomes the ultimate arbiter of GECOM’s decisions. It was therefore against this reality of pliant, partisan Chairmen, like Justice Bollers, that Article 161(2) was crafted specifically to mandate the appointment of a Chairman based on a consensual process. He was “to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition…” However, utilising a very strained interpretation that flies in the face of the intent of the Article, Justice George-Wiltshire ruled, in the end, that after rejecting a list, the President could then UNILATERALLY appoint a Chairman. She acknowledged that as per her ruling in the case of Gaskin v. , (that) Article 161 (2) was intended to contribute to the balance and impartiality of the Elections Commission. But she then added that once the President rejected the list, he could appoint a person that satisfied the criterion of Article 161 (1): of being either a Judge or any other “fit and proper person”; which vitiates any notion of the fundamental purpose of the Article, which she acknowledged is to encourage accommodation between the two offices of President and Opposition Leader. Recently, Justice Stephen Breyer of the US Supreme Court summarised the “six tools” judges use in constitutional and statutory interpretation: (1) The text of the statute; (2) Legislative history: how those words got into the statute; (3) Statutory tradition: how those words have been used before and after this statute; (4) Precedent; (5) The purpose of the statute and (6) Practical consequences relevant to the purpose of the statute. Breyer noted that some judges stress the first four tools and ignore the last two, fearing a creep into “subjectivity”. For instance, based on his rulings and comments, it was appear that former CCJ Justice Bryn Pollard falls into that category, since he has so summarily rejected the “Basic Structure” doctrine which cites the purpose of the entire constitution. But in the instant case of selecting a Chairman for GECOM, Justice George-Wiltshire explicitly acknowledged the purpose of Art 161 (2), only to then perform a legal somersault, rely on a strained interpretation of the text, and reject legislative history, precedent, purpose and consequence. Justice Breyer warned that judges who resist utilising the tools of “purpose and consequences” are avoiding their judicial responsibility. It is very clear that this is exactly what Justice George has done, and one hopes this will be rectified at the Appellate level.