In light of comments by President David Granger that he will continue to act in accordance with his perception of the Constitution, the Guyana Bar Association (GBA) has emphasised that the State is compelled to comply with the judgment handed down by the Chief Justice in the Marcel Gaskin application on the appointment of a new head of the elections body.
The GBA also noted that a Court Order could be obtained to ensure the State complies with the ruling.
“The leading legal treatise on this type of order describes the effect of a declaratory order in the following terms: …whilst the defendant is assumed to have respect for the law, justice does not rely on this alone. A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is res judicata as a result of the declaration being granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings,” the Association outlined in a statement.
The GBA said the treatise makes it clear that the refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration.
The GBA also noted that, “declaratory orders made by the Chief Justice, based on Her Honour’s application of principles of law, are not interpretations or opinions but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.”
In that regard, the Bar Council said it is confident that, like in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the Chief Justice.
The Ministry of the Presidency (MotP) yesterday noted however that the President maintains his preference for a judge-like person for the new Chairperson of GECOM.
“As early as January 2017, during the a recording of The Public Interest, the President had said that he believes that what the drafters of the Constitution had in mind was someone who had arrived at the position of a judge, as it is expected that person would have been someone, who possesses the qualities of impartiality, integrity and intelligence. The President added that any ‘fit or proper person’ must approximate those qualities that characterise what is expected of a judge,” the statement outlined.
Last week, President Granger made several comments which painted the impression that he has dismissed the Chief Justice ruling.
The President said, “I will continue to act within my perception of the Constitution; that is to say, that I will not appoint somebody that I do not consider ‘fit and proper’.”
He also expressed that he will not give reasons for rejecting the nominees already submitted even though the Chief Justice ruled that he is obliged to do that in the furtherance of democracy and good governance.
“If you can 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,” the President stated.