President under fire from civil society, Opposition

…continues to be roasted for rushed appointment of GECOM chair

The appointment of a Chairperson for the Guyana Elections Commission (GECOM) had dragged on for 10 months, with President David Granger taking weeks to examine the CVs of the nominees named by Opposition Leader Bharrat Jagdeo.
Now Granger is under fire from the political Opposition, given the rushed appointment of 84-year-old James Patterson as the new GECOM Chairman.
As the fallout continues from the shocking appointment, the political Opposition – with strong backing from a wide cross-section of a number of civil society organisations – has wasted no time in rejecting and soundly criticizing the President over his ‘unconstitutional’ appointment.
Pulling no punches, the Opposition PPP/C has condemned the decision as a dangerous threat to democracy.

RUSHED APPOINTMENT

At his last news conference, Jagdeo referred to an October 19, 2017 online news report which quoted Granger as saying: “Over the last four, five weeks we have been searching…we had searched. We tried very hard to find somebody who is acceptable to the Guyanese public as a whole, and who conforms to the constitutional requirement.”
However, Jagdeo pointed out that a different approach was taken in the time taken to consider Patterson for the appointment as GECOM Chairman.
On October 19, 2017, the online news site ‘Demerara Waves’ also quoted the President as saying: “I have never approached Justice Patterson prior to the reception of the third list, and I have not dragged on the process.” In the same article, Patterson was quoted as saying: “I was never approached prior to tonight (Thursday).”

Considering the rushed appointment and the comments made by both Granger and Patterson, Jagdeo said, “So when he took weeks to consider the others, in a couple of hours he decided Patterson was suitable.” As such, the Opposition Leader noted that the timeline “smacks of a plot” by the APNU+AFC government.
He said: “Either it was a plot long before…either Patterson is not being truthful when he said he was only asked that very night, or he was asked long before.” Jagdeo contended that if Patterson is being truthful and was indeed asked to be GECOM Chairman the very night of his appointment, then Granger’s decision was therefore callously made.
Granger and his government ministers have since defended Patterson’s rushed appointment by saying it was done in the best interest of Guyana.

JAGDEO’S LETTER TO HARMON
GECOM has been without a Chairman since its past Chairman, Dr Steve Surujbally, resigned in November 2016, indicating that he would be retiring from public service. He was asked by President Granger to remain in the position until February 2017.
In a letter dated November 15th, 2016, Opposition Chief Whip Gail Teixeira, on behalf of Jagdeo, wrote to Harmon, making queries about the move forward.
The letter said: “In the light of this development (Surujbally’s retirement) and the fast approaching deadline, l am writing you on behalf of the Leader of the Opposition, seeking to be advised on the approach His Excellency President David Granger’s Government intends to take in filling the vacancy, as provided for in Article 161 of the Guyana Constitution.
“Specifically, the Leader of the Opposition, Hon. Bharrat Jagdeo, M.P., wishes to be informed whether the President will formally write to him inviting him to submit his six (6) nominees as required by Article 161, or whether the President will initiate a preliminary formal meeting with him to discuss the appointment of a new Chairman of the Guyana Elections Commission (GECOM) in accordance with the letter and spirit of Article 161 of the Constitution of Guyana.”

WIDE CONSULTATIONS
Afterwards, in early December, the Opposition Leader, although not constitutionally required to do so, began consultations with several groups from civil society to compile the first list of six nominees to be sent to President Granger.
On December 21, 2016, the first list was submitted. Granger rejected this list on January 9, 2017. The nominees included: Governance and Conflict Resolution Specialist Lawrence Latchmansingh; Attorney-at-Law and Chartered Accountant Christopher Ram; Retired Major General Norman Mc Lean; Business Executive Ramesh Dookhoo; Businesswoman Rhyaan Shah; and History Professor James Rose.
On May 2, 2017, a second set of nominees was submitted, and included: Retired Justice of Appeal BS Roy; Retired Justice William Ramlall; former Magistrate Oneidge Walrond-Allicock; Attorney Kashir Khan; Attorney Nadia Sagar; and Captain Gerald Gouveia. This list was rejected a month later, on June 2, 2017.
The third set of nominees was sent to Granger on August 25, 2017. It was rejected almost two months later, on October 19, 2017. The nominees included: Major General Joseph Singh; Mr. Teni Housty; Mr. Sanjeev Datadin; Mrs. Annette Arjune-Martins; Mr. Onesi La Fleur; and Mr. Krishnadatt Persaud.
Addressing the rejection of all three lists, Jagdeo said, “Those names came from civil society. It (Granger’s rejection of the 18 names) is a rejection of a list from civil society, a rejection of impartial and professional people.”
The Opposition Leader pointed out that consultations with over 50 representatives from 33 civil society groups were held before each of the three lists were sent to Granger.
Representatives of the private sector, human rights, Toshaos council, women, youth, medical association, among other non-governmental organisations (NGOs), as well as trade unions and religious organisations were a part of the consultations. The groups made recommendations from which the names were chosen and submitted as nominees to Granger.

GRANGER’S CRITERIA
After the first list was rejected, Jagdeo wrote to Granger on January 10, 2017. The letter said: “Your Excellency has expressed the view that the six (6) persons whose names I submitted to fill the position of the Chairman of the Guyana Elections Commission “do not seem to conform to the requirements of … Article 161(2) …” of the Constitution of the Cooperative Republic of Guyana.
“I have also noted certain comments attributed to Your Excellency by the media made at a function held at State House on the 8th January, 2017, which tend to suggest that you apprehend Article 161(2) to require only persons who are Judges, qualified to be Judges, or former Judges of either a court having unlimited jurisdiction in civil and criminal matter, or a court having jurisdiction in appeals from any such court. If those media reports accurately conveyed your views, then I am obliged to inform Your Excellency that my interpretation of Article 161(2) is different, insofar as it also provides for, in addition to the category of persons to whom you have referred, “or any other fit and proper person”.
“In the circumstances, I hereby request that Your Excellency clarify what you interpret the qualifications are of the persons to whom Article 161(2) of the Constitution refers. I am of the considered view that an urgent meeting will immeasurably assist in reconciling any differences of opinion which may exist on this issue.”
In response, Granger stressed that the nominees for the post of Chairperson of GECOM should: have wide electoral knowledge; be a judge, former judge, or qualified to be appointed as a judge in the Commonwealth; be impartial; not be an activist in any form (gender, race, theological, etc); and that the person should have a general character of honesty, integrity, etc.

GRANGER’S ADMISSION
However, last week, October 24, Granger was confronted by the media on the fact that Patterson does not meet the criteria he himself set out – in that: Patterson’s integrity is currently under question, since there has been no official confirmation that he served as Chief Justice of Grenada in 1987, as stated on his CV; Patterson is a religious activist, being a Reverend, also stated on his CV; and Patterson’s impartiality is being questioned, since he was included in the private funeral ceremony for former PNC leader and president, Desmond Hoyte.
Granger has since admitted that his criteria were not constitutional requirements. “I was asked by the Leader of the Opposition to suggest certain criteria which were not necessarily incorporated in the Constitution, and I proposed certain criteria,” Granger said.
Commenting on Granger’s admission, Jagdeo said Granger has seemingly only now “discovered” that his criteria were not in the Constitution.
He also rubbished Granger’s statements that the political Opposition did not object to the criteria he provided. Jagdeo referred to a March 22, 2017 letter to the President which made clear the PPP/C objections and the implications of such a requirement. He also referred to a March 21, 2017 press statement which did the same.
He quoted from the press release, which said: “In the meeting, the Leader of the Opposition stated that he had grave reservations on the legality and constitutionality of these criteria and intended (to have) these concerns brought to the attention of the President.”

COURT CHALLENGE
Prior to the rejection of the third set of nominees, acting Chief Justice Roxanne George gave a ruling in the case of Marcel Gaskin, businessman and brother of Granger’s son-in-law Dominic Gaskin, vs. the Attorney General of Guyana.
The President had expressed three contentions in the past: 1. That the nominees must be judges, former judges, or persons eligible to be judges in Guyana or in the Commonwealth; 2. That every member on the list of nominees must be acceptable to him before he proceeds to choose a Chairman; and 3. That he is not required to give a reason for rejecting the list of nominees.
Gaskin asked the court for responses to specific substantive questions, and Jagdeo made clear that Granger’s three contentions were essentially debunked by the Chief Justice’s ruling.
The answers to the questions posed, according to the Chief Justice’s ruling, are as follows:
•QUESTION: Whether the list of persons for appointment as Chairman of the Elections Commission, required to be submitted by the Leader of the Opposition under the said Article 161 (2), must include a judge, former judge or a person qualified to be a judge. The answer to this question is hereby declared in the negative – NO.
• QUESTION: Whether the President is required under the Constitution to state reasons for deeming each of the six names on the list submitted by (sic) the Leader of the Opposition unacceptable. The answer is hereby declared to be in the positive – YES.
• QUESTION: Whether a fact-finding by the President that any one or more person is not a fit and proper person renders the entire list as unacceptable. It is hereby declared that the answer is in the negative – NO.

PROVISO ISSUE
In moving to a unilateral appointment, Granger and his government ministers, including Prime Minister Moses Nagamootoo and Attorney General Basil Williams, have said that the President relied on the proviso to Article 161 (2). Article 161 (2) states: “…the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person.”
The proviso in the Constitution states that if the Leader of the Opposition fails to submit a list, as provided for, then the President can appoint a judge or former judge or qualified to be a judge in Guyana or the Commonwealth.
In her ruling, in the case of Gaskin vs. the Attorney General, the acting Chief Justice ruled that: “While the applicant (Gaskin) has not applied for a determination of this issue, it was raised by the Bar Association in its brief which was filed and served on all parties.…it does appear to me that failure to submit a list as provided for speaks to the provision of an acceptable list, as discussed earlier. If by not choosing any of the persons listed the President thereby find the list unacceptable, the proviso to Article 161 (2) would apply and the President should then go on to appoint a judge or former judge or person who would qualify for appointment as a judge in Guyana or the Commonwealth to the post of Chairman of GECOM. But all of this in in effect academic, because more than one list has been sought and provided.”
The Acting Chief Justice made clear that the President cannot rely on the proviso in the Constitution, because a list was provided.

BAD FAITH
The Opposition Leader, all considered, charged that Granger acted in bad faith in appointing Patterson as the new GECOM Chairman.
Jagdeo disclosed that, after the first list was rejected, in the latter part of March 2017, the President, via a letter, promised to work collaboratively moving forward.
He added that after the second list was rejected, the President made a public comment about working collaboratively. A statement from the Ministry of the Presidency, in early June 2017, stated that the Opposition Leader will be asked to submit a third set of nominees.
Granger said, “I’m prepared to work with the Leader of the Opposition for as long as it takes to have somebody selected who fits the criteria, satisfies the Constitution, and is one that the people of Guyana could be happy with. I’m prepared to work with the Leader of the Opposition for as long as it takes, but I’m not going to give the people of Guyana the appointment of a person who is not fit and proper in accordance with the Constitution or criteria which have been laid out.”
The promise of collaboration was repeated on June 12, 2017 in a joint statement between Government and Opposition on the selection of the GECOM Chairperson, which stated that: “It was also agreed that a high-level team would be assembled representing the President and the Leader of the Opposition which will begin to work immediately on exploring modalities to bring a resolution to this matter in the event that the list is rejected.”
Jagdeo said, “His promise of collaboration in March and in June came after I had stated that he was probably moving in the direction of a unilateral appointment. What his promise did was put the country at ease….this is why I accused him of acting in bad faith at the meeting last Thursday (October 19, 2017).
“…as a corollary to the bad faith, the actual swearing in of Patterson was a sinister and surreptitious move on his part….they knew they were acting unconstitutionally, so it was done hurriedly….it was an illegal appointment, so it was carefully orchestrated.”
Patterson’s appointment is now being challenged in court. The matter, filed in the name of People’s Progressive Party (PPP) Executive Secretary Zulfikar Mustapha, is scheduled to be heard on November 15, 2017.