By: Mohabir Anil Nandlall, MP.
Attorney-at-Law
Last week, the Leader of the Opposition submitted to the President, a list of six persons from which the President is entitled to choose one, in accordance with article 161 (2) of the Constitution, to fill the vacant position of Chairman of the Elections Commission. Article 161 (2) contains three important caveats: (a) the six persons must not be “unacceptable” to the President;(b) the Opposition Leader is required to hold meaningful consultation with non-governmental parties represented in the National Assembly; and (c) if the Leader of the Opposition fails to submit such a list then, the President shall appoint a person who has held the Office of 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 a person who is qualified to be appointed as any such judge.
As regards (a) above, there is no non-governmental political parties, currently, in the National Assembly with whom the Leader of the Opposition could have held meaningful consultations. Nevertheless, and commendably, the Leader of the Opposition held widespread public consultations with civil society organizations, the religious community, the labor movement and the private sector. My information is, that it is these consultations which yielded the six names submitted to the President. As regards (c) above, there ought to be no issue of this eventuality arising, since the Leader of the Opposition has submitted a list of six names as is required. Therefore, it is now for the President to determine whether he finds this list “not unacceptable.” If he finds it unacceptable, he will go down in history as the first President to have done so since this formula was introduced in 1992. In such an eventuality, I agree with the sentiments expressed in the press by my learned friend, Minster Joseph Harmon, who pointed out that the Leader of the Opposition will then be called upon to submit another list until consensus is reached. When one examines the historic evolution of this matter, as I will briefly do, it is clear that those who conceived and designed this formula, intended to achieve consensus between the Government and the Opposition, in the appointment of the Chairman of the Guyana Elections Commission.
Perhaps a convenient point to begin, is to examine the precursor position to the current constitutional formula for the appointment of the Chairman of the Elections Commission. It is captured in article 161 (2) of the 1980 Constitution. It provided for the Chairman to be elected by the President (acting on his own) from among persons who have held the office of 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 a person who is qualified to be appointed as any such judge. Under this formula, two chairmen were appointed: Sir Donald Jackson under the 1966 Constitution and Sir Harold Bollers under the 1980 Constitution. Both were former Chief Justices of Guyana.
Among the changes campaigned for, nationally and internationally, as a run-up to the 1992 elections, were reforms to the Elections Commission and the selection of a new chairman. President Desmond Hoyte eventually conceded to these, among other reforms. It was the Carter Center which put forward a proposal under which the Opposition parties were to submit a list of names, of six persons, and President Hoyte was to choose one of them as chairman. The 1980 constitution was temporarily amended to accommodate this new formula and other changes were made to the Elections Commission which are not relevant to this discourse. The qualifications of the chairman were also expanded to include “any other fit and proper person.”Under this new formula, Opposition Leader, Dr. CheddiJagan, in, 1991, submitted to President Hoyte, the following six names: David Yankana, Bryn Pollard, Rudy Collins, Joey King and Ronald Luckhoo. From this list, President Hoyte chose Ambassador Rudy Collins.
After the 1992 elections, this temporary amendment to the Constitution lapsed. However, for the Local Government elections 1994, the Constitution was then again temporarily amended, incorporating the Carter Formula for the purposes of the Local Government elections, with one addendum: that the list of names must not be “unacceptable” to the President. Under this formula, Mr. Hoyte submitted a list of six names to President Jagan. From this list President Jagan chose Mr. Edward Hopkinson as Chairman of the Elections Commission for the Local Government Elections.
The amended Carter Formula was used again in the 1997 elections with the Constitution again being amended in 1995, capturing the Formula. In pursuance thereof, Opposition Leader Mr. Hoyte, submitted six names to President Jagan. These names were: Doodnauth Singh, S.C., Edward Hopkinson, Justices James Patterson and Rudolph Harper, Charles Liburd and Randolph Kirton. President Jagan chose Mr. Doodnauth Singh as the Chairman. During the 1999-2001 Constitutional Reform process, the Carter formula was eventually incorporated permanently into article 161 of the Constitution by Act #2 of 2000. The Minutes and the Notes of that process clearly explain that the intention of the Carter Formula was designed to achieve consensus between the Opposition and the President in respect of the appointment of the Chairman of the Elections Commission. The Formula has been a permanent feature of the Guyana’s Constitution since. In relation to the 2001 elections, the current President himself were among the names submitted by Mr. Hoyte to President Jagdeo. The list was as follows: Major General Joe Singh, Justice Rudolph Harper, Dennis Craig, David Granger, Gem Fletcher and Harold Davis. President Jagdeo chose Joe Singh as Chairman. Dr. Steve Surujbally was similarly appointed Chairman. He functioned as chairman for the 2006, 2011, and 2015 General and Regional Elections. He served the longest under the now permanently constitutionalized Carter Formula.
From the above recitation, there is one commonality: the list submitted by the Opposition Leader from 1992 onwards was always deemed acceptable by the President and a person was chosen from that first list. While it is open for President Granger to reject the list submitted last week by Opposition Leader, Bharat Jagdeo, the task of furnishing good and proper reason for this rejection and for disregarding strong precedent, I daresay, would be herculean. The list is made up of six constitutionally, academically and professionally qualified Guyanese of national eminence who have served with distinction in their chosen field of endeavors. They are: Major General retired Norman McLean, Lawrence Latchmansingh, Ramesh Dukhoo, Professor Dr. James G. Rose, Ryhaan Shaw and Lallbachan Christopher Ram.
The ball is now in the President’s court.
