The Caribbean Court of Justice (CCJ) has ruled that President David Granger was in breach of the Constitution when he unilaterally appointed Justice James Patterson on October 19, 2017.
The Court will now have to make orders to remedy the situation.
Patterson was appointed 19th October 2017, pursuant to proviso of Article 161 (2) of the Constitution.
Article 161 (2) provides for the appointment of a Chairman based on a process in consensual process in which a list of six persons, “not unacceptable to the president,” is submitted by the opposition leader.
The proviso allows for the appointment to be made unilaterally, where the opposition leader fails to submit a list “as provided for.” Jagdeo submitted three lists, which were all rejected by Granger.
Member of Parliament Zulfikar Mustapha complained that the process engaged by the President was flawed, and invited the Court to quash the appointment and choose one of 18 persons nominated by Opposition Leader Bharrat Jagdeo.
The Court ruled that it had the responsibility to say what the constitution means, denying arguments that decisions of the President could not be inquired into.
To determine the meaning of Article 161 (2) of the Constitution, the CCJ looked at drafting history of the constitution, noting that it had carved out a role for the Opposition Leader, namely the Carter Formula, in which the Leader of the Opposition nominates a list of six persons and the President chooses one.
The CCJ determined that it was not clear what process should be followed to allow for the spirit of consultation between the Leader of the Opposition and the President.
The most sensible approach, the CCJ found, was for the Leader of the Opposition and the President to communicate and meet to discuss eligible candidates before a list is submitted.
It further reasoned that they should agree to a list of six persons and then that list would be formally submitted to the President.
The CCJ ruled that if the President were to capriciously elect a chairman, it would defeat the purpose of the constitutional role for the leader of the Opposition.
Further, the court ruled that the President was not entitled to lay down eligibility requirements for the chairman that were additional to or at variance with the constitution.
In view of what the Court called the “unfortunate the process” in appointing the GECOM chairman, it determined that the process was flawed and in breach of the constitution.