GECOM Chair impasse
… challenges separation of powers doctrine
Acknowledging that the acting Chief Justice has a right to give her interpretation of the law, President David Granger has maintained that he will continue to act in
accordance with his interpretation of the Constitution regarding the appointment of a chairman for the Guyana Elections Commission (GECOM).
Giving his reaction to the ruling handed down in the High Court on Monday by acting Chief Justice Roxane George, the Head of State said he would not appoint anyone who he believed was unfit for the post.
“That is to say, I will not appoint somebody who I don’t consider to be fit and proper,” he said.
Asked if he would now give reasons for rejecting the names on the two lists submitted by Opposition Leader Bharrat Jagdeo, Granger said, “If you could show me the Article of the Constitution which requires me to give reasons, I will comply
with the Constitution, but I will not do what the Constitution does not require me to do. I do not believe that anything the Chief Justice said has diminished my regard for the word and spirit of the Constitution.”
He maintains his belief that the person chosen must be independent and impartial and, according to him, he is still looking for that independence and impartiality.
Justice George, SC, on Monday overruled the President’s interpretation of the Constitution regarding the appointment of a chairman for GECOM, finding that there is no particular preference for the appointment of persons within the Judiciary.
In her determination, Justice George found that there was no valid argument to
support the idea that the Chairman should be a judge, former judge or person eligible to be a judge, and noted that persons from each category are equally eligible for the post. However, in an issued statement after the ruling, the applicant, Marcel Gaskin highlighted that the acting Chief Justice went to address the proviso to Article 161 (2), which applies to the instance of the Opposition Leader failing to submit a list.
Included in the 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. The acting Chief Justice 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 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. It is currently being complied by the Opposition Leader.
In the court action, Gaskin sought a declaratory order from the Court as to whether the list of nominees to be submitted by the Opposition Leader must include a judge, a retired judge, or a person qualified to be a judge.
President Granger, however, held out that Article 161 (2) of the Constitution prescribes for the Chairman of the Elections Commission to be “a person who holds or who has held office as a judge of a court…or who is qualified to be appointed as any such judge, or any other fit and proper person…”
Having interpreted “fit and proper” to mean another group of qualified persons, the Opposition Leader in December submitted his first list and nominated: Attorney and Chartered Accountant Christopher Ram; Conflict Resolution Specialist Lawrence Lachmansingh; retired Major General Norman McLean; business executive Ramesh Dookhoo; Indian rights activist Rhyaan Shah, and History Professor, Dr James Rose. However, the Head of State rejected that list on his aforementioned grounds.
Following weeks of impasse, Jagdeo finally agreed to return to the drawing board and submit a new list of nominees. Consultations were held for several weeks with civil society representatives, since there were difficulties in conforming to the criteria outlined by the President. Nevertheless, Jagdeo submitted a second list of six nominees for the post of Chairman of GECOM to the Head of State in April. The nominees were: retired Justice of Appeal BS Roy; retired Justice William Ramlall; former Magistrate Oneidge Walrond-Allicock; Attorneys Kashir Khan and Nadia Sagar; and businessman and pilot, Captain Gerald Gouveia.
Again, President Granger rejected the list, saying that it was “unacceptable” and reiterated his stance that all of the nominees should be a judge, retired judge, or qualified to be a judge.