I have noted press reports of the ruling of the Honourable Madam Justice Roxane George S.C. CCH, Chief Justice (ag.) in the matter filed by Marcel Gaskin.
The Leader of the Opposition was named as a party to those proceedings by the
Bharrat Jagdeo
Applicant. As a result, my Attorneys-at-Law were invited by the Court to make submissions for the purpose of assisting the Court in determining the important questions posed to the Court by the Applicant in respect of, an interpretation of Article 161(2) of the Constitution of the Co-operative Republic of Guyana. In compliance with the Court’s request, my lawyers duly submitted copious legal submissions supported by dozens of case law authorities in respect of each of the questions which were posed to the Honourable Court.
Having read excerpts of the ruling carried in the Press, I am happy that the Honourable Chief Justice has clarified many of the issues which seemed to have caused deep confusion in the minds of the Attorney-General and the President.
The Honourable Chief Justice’s ruling has clarified the following issues:
(i) that the list of names which is to be submitted by the Leader of the Opposition to the President for the appointment of a Chairman of GECOM can comprise of judges, former judges, any person qualified to be a judge or any other fit and proper person;
(ii) that there is no preference of one category over the other;
(iii) that any person from each category can be appointed;
(iv) that the list can consist of six judicially or legally qualified persons, or six fit and proper persons;
(v) that there is no requirement that a judicially qualified person must be on any list;
(vi) that any fit and proper person must have the characteristics of honesty, integrity, impartially and independence from political or other control;
(vii) that the President is obliged to provide reasons for deeming each of the six names on the list submitted to him, as unacceptable;
(viii) that the Constitution contemplates only one list but that list can be amended with names added and removed from it;
(ix) that the President’s actions and decisions are justiciable in a court of law;
(x) that the finding by the President that one name is unacceptable does not render the entire list unacceptable;
(xi) that so long as a single name is acceptable to the President, he ought to appoint that person.
All of the above vindicate the position we have adopted on this matter from the inception.
However, I am informed that in the course of her ruling, the Honourable Chief Justice is interpreted to have said that if the President deems every name on a list as unacceptable, then the proviso to Article 161 applies. If this report is correct, we respectfully take issue with this aspect of the Chief Justice’s ruling. We maintain most resolutely that the proviso only applies when no list has been submitted. That once a list has been submitted, the proviso has no applicability.
It is public knowledge that a list has been submitted several months ago. The first six names on that list have been rejected and a second six set of names have been substituted therefor. The second set of names has been rejected and a third set of names has been submitted- all upon the invitation of the President.
More significantly, the proviso to Article 162 of the Constitution was not placed before the Court for its interpretation, nor was it part of any of the questions posed to the Court, nor was it the subject of any legal submissions, either from the Applicant’s, nor the Guyana Bar Association’s nor my Attorneys-at-Law. It is therefore rather strange that such a proposition appears to form part of the ruling in the case. In any event, I am advised that if the Honourable Chief Justice made such a statement, it constitutes obiter dicta and is not binding.
I await a copy of the written decision and if that statement is in fact in the written decision, then I will have no alternative but to join Marcel Gaskin in filing an appeal against it.
