President cannot make unilateral appointment – Nandlall

GECOM chairmanship

Contrary to utterances made by Attorney General Basil Williams, his predecessor Anil Nandlall is making it clear that the President of Guyana cannot unilaterally appoint a Chairman of the Guyana Elections Commission (GECOM).

Nandlall is also making this assertion in wake of arguments by the Alliance For Change (AFC) that the President cannot be stopped from making a unilateral appointment, even by the courts.

Nandlall argued that the President can only take such course of action if the Opposition Leader fails to participate in the process; that is, failing to submit a list of six nominees.

President David Granger, in an unprecedented move, rejected the first list of nominees submitted by Opposition Leader Bharrat Jagdeo on the basis that the nominees do not conform to the requirements of the Constitution of Guyana. He declared at a State Function to media operatives that the nominees are “unacceptable”.

But Nandlall asserts that it is incumbent upon the President to disclose the grounds upon which he has found each of the six candidates “unacceptable” – something he has since failed to do.

Inconsistencies

There have been several inconsistencies regarding the President’s position on the appointment of the GECOM Chairman, coupled with different interpretations of the Constitution between Government and the parliamentary Opposition.

President Granger initially communicated the impression that only judges, former judges or persons qualified to be appointed as judges to the High Court or an appellate court, qualify to be appointed as Chairman of the Elections Commission. He omitted to disclose that in addition to those possessed of legal qualifications, the Constitution also provides for any other “fit and proper person” to be appointed as well.

This led Jagdeo to suspect that the President is referring to the “Burnham Constitution” – the 1980 Constitution which stipulates that the nominees must only be judges or eligible to be judges and that the GECOM Chairman must be appointed by solely the President.

However, the new Constitution, which incorporates the Carter Formula, expands the criteria for the nominees to be more than just judges or eligible to be judges and introduces a process for the appointment of the GECOM Chairman which involves the participation of the Opposition Leader.

“Fit and proper”

But his Attorney General, Basil Williams, subsequently contended that the President has the discretion to determine who is “fit and proper” and in this case, he deemed the nominees not “fit and proper”.

His assertions were once again debunked by Nandlall who explained that the Constitution does not permit the President the power to make such a determination.

“The Constitution resides in the President a discretionary power to determine whether the persons are unacceptable or not; not whether they are fit and proper person. Whether a person is fit and proper is to be objectively determined having regard to the context and circumstances which are under consideration,” he stated.

Meanwhile, the AG had further posited that the President can go ahead and appoint a GECOM Chairman of his choosing after rejecting several lists submitted by the Opposition Leader, but Nandlall highlights that the President has no such power.

“It is only in the event that no list is submitted by the Leader of the Opposition that the President has a power in Article 161(2) to make a unilateral appointment. I am not only fortified in my view by the letter of the Article but also by its spirit and the intendment of its framers,” he stated.

Carter Formula

Nandlall explained that the Carter Formula was intended and designed to create, as far as possible, a politically consensual and balanced Elections Commission.

“Hence, the Commission is composed of three Commissioners nominated by the Opposition parties in Parliament and three Commissioners nominated by the governing party, along with a Chairman who has a casting vote. This Chairman comes from a list of six which emanates from the Leader of the Opposition but which must find the acceptability of the President and from which he is empowered to choose one. If the Chairman is to be chosen by the President alone, it would destroy the vital equilibrium which the Elections Commission was intended to possess,” he said.

Suspicions are high that the governing A Partnership for National Unity/Alliance For Change (APNU/AFC) coalition Administration, with its assertions, is setting the stage to rig the next General Election by misconstruing the Constitution to unilaterally appoint a Chairman for GECOM of their choosing.

The Opposition Leader has since invited the President for an urgent meeting to discuss the matter, particularly to clarify the misinterpretations and to propose that both parties approach the Caribbean Court of Justice (CCJ) to seek a legal ruling on whose interpretation of the Constitution is correct.

The President is yet to respond, but Jagdeo already signalled his intention to approach the CCJ with or without the President’s participation. However, AFC Leader and Vice President Khemraj Ramjattan contended that the President can continue to reject the lists submitted by the Opposition Leader and then subsequently appoint “whosoever he wants of his own volition.”

Ramjattan also contended that there is no court of law that can compel the President from doing so.