GECOM chair challenge
…President has discretion to unilaterally appoint – Chief Justice
Acting Chief Justice Roxane George on Friday ruled that the Constitution of Guyana allows for the President to unilaterally appoint someone to fill the position of Chairman of the Guyana Elections Commission (GECOM).
Justice George’s ruling came after the Opposition People’s Progressive Party (PPP) filed an injunction on October 23, 2017, to have the court rescind the unilateral appointment of Reverend Justice James Patterson as Chairman of the Elections Commission. Former Attorney General Anil Nandlall on behalf of the Party’s Executive Secretary and Member of Parliament, Zulfikar Mustapha, filed the motion just days after President David Granger made the announcement.
Apart from rescinding the appointment of Patterson, the PPP also argued that he is unqualified for the post while asking the court to order the President to choose a person from the 18 names submitted by Opposition Leader Bharrat Jagdeo.
“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 Art 161(2), or to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM,” the CJ said.
The CJ also said that the Opposition could produce no evidence that Patterson was unqualified for the position, while adding that even if she had agreed with the contention that the appointment was unlawful, then it would not have been “permissible for this court to usurp the function of the President by directing him to choose a nominee from the third or any list.”
Additionally, Justice George also ordered the Opposition to pay the sum of $250,000 as court costs to the State.
A legal team headed by Attorney Anil Nandlall represented Mustapha, while Attorney General Basil Williams, Solicitor General Kim Kyte and Barbadian Queens Counsels, Ralph Thorne and Hal Gollop represented the interest of the State.
Following the decision of the court, Williams spoke to media operatives where he labelled the decision as “well-reasoned”, adding that it confirms the belief of the Government that the authority to appoint the GECOM chair lies with the President and the President alone.
Appeal
However, the PPP is still contending that Patterson was a religious leader, which is a clear violation of criteria set out by President Granger to Jagdeo. It maintains that Patterson is unfit and improper for the job since he was a pall bearer at People’s National Congress leader, Desmond Hoyte’s funeral and the fact that he lied on his CV when he said he was the Chief Justice of Grenada.
It was later revealed that Patterson merely acted in that capacity and when questioned about it, he told media operatives that it was just a slip of pen.
During an interview with <<<<<Guyana Times>>>>>, Nandlall said his party intends to appeal the matter.
“While we respect that ruling, and while we must abide by that ruling, we do not agree with it and we will exercise our undoubted right to appeal that ruling to the Court of Appeal and if necessary to the Caribbean Court of Justice,” he said.
Nandlall said his party feels the Chief Justice’s ruling has rendered the constitutional formula – which requires a Chairman of GECOM to be appointed by a joint exercise, and a process that involves the joint input of the President and the Opposition – redundant.
“We believe that ruling therefore is contrary to the intent of the framers of the Constitution [which] intended that the Chairman must be appointed by a process which requires the input of the Leader of the Opposition and the President. That only in the rare and exceptional circumstance where there is no list provided that the President has a unilateral power of appointment,” he explained.
Disappointed
Meanwhile, the PPP in a statement on Friday afternoon expressed its disappointment in the decision of the Chief Justice.
“This decision strikes at the heart of our constitutional and electoral democracy. It has destroyed that delicate balance, which a Chairman is intended to bring to the Guyana Elections Commission. The framers of the Constitution intended this Chairman to be appointed through a mechanism, which involves an input from both the President and the Leader of the Opposition, to ultimately produce a person who enjoys the confidence of both. This is the reason why this Chairman is endowed with the power of a casting vote to break deadlocks at a bi-partisan Commission,” the PPP stated.
It added that “unfortunately, this ruling, in violation of the letter and spirit of the Constitution, seeks to legitimise a unilateral appointment of a GECOM Chairman and has crushed that crucial balance in the makeup of the Commission. A unilateral appointment is contemplated by the Constitution only in the rare and exceptional circumstance, where the Leader of the Opposition fails to provide a list of nominees to the President.”
The Party also stated that it has noted with deep regret, the great focus which the ruling placed on “inconsequential issues and the glossing over of the more fundamental questions.”
“Although the Chief Justice recognised in her ruling the mandatory obligation of the President to give reasons for the rejection of a list and found that a failure to give such reasons can cause a decision of the President arising there from to be set aside by a court.”
According to the Party, It would be remiss if they do not recognise that this ruling may, or has, paved the way for more executive unilateral appointments in situations where the Constitution require agreement between the President and Leader of the Opposition.
Patterson was appointed after President Granger rejected three lists of 18 names submitted by Jagdeo for the post of GECOM Chairman.
