President David Granger Wednesday said he will write the Opposition Leader Bharrat Jagdeo to resume talks on appointing a new chairman of the country’s elections body, but he said he wanted to hear from the Caribbean Court of Justice (CCJ) on why the process he used was flawed.
Despite the CCJ setting out the reasons why the process was flawed and unconstitutional, the President insisted that he has never gone “outside” of what the Constitution says.
“I have to select someone who is fit and proper,” Granger told reporters at the Ministry of the Presidency on Wednesday.
“They must let me know what the flaw is,” Granger said of the CCJ, noting that he will wait for the consequential orders of the Court.
He said it was the duty of the Opposition Leader to give him a list of six persons that is acceptable to him.
The Opposition Leader had given the President three lists of six persons, and the President rejected all of the lists without giving an explanation. He then said he was forced to appoint Justice James Patterson because the lists were not in conformity with what was required.
In unilaterally appointing Patterson on October 19, 2017, the President had stated to the Leader of the Opposition: “Desirous of fulfilling the requirements of the Constitution and given the need to appoint a Chairman of GECOM and in light of the failure of the Leader of the Opposition to present a list that is not unacceptable I have decided that it would be in the public’s interest to resort to the proviso of article 161 (2).”
Article 161 (2) of the Constitution states that “the Chairman of the Elections Commission shall be a person who holds or who had held office as a judge of a court…or who is qualified to be a appointed as any such judge, or any other fit and proper person to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition.”
There is a proviso which provides for the President to appoint someone on his own if the Opposition Leader does not submit a list “as provided for.”
In determining the main issue in the case, the CCJ looked first at the proper meaning of Article 161(2).
To determine the meaning, the Court looked at the drafting history of Article 161(2), observing that changes had been made to it to promote consensus and inclusiveness by involving the Leader of the Opposition in the selection process.
The CCJ also stressed that “an onus is placed on the President not to find a nominee unacceptable merely because the nominee is not a choice the President would have himself made.”
“The President should only find a nominee unacceptable for some good reason on objective grounds,” Justice Adrian Saunders, President of the Court, stated in delivering the judgement Wednesday.
The Court also determined that the President could not, as a precondition to considering a nominee, include eligibility requirements that were additional, or different, from those stated in the Constitution.
After the first list was rejected, the Opposition Leader asked the President to explain what he interprets as “fit and proper” before a second list could be submitted.
On March 16, 2017, the President stated the “qualities that the candidate to be Chairman of the Guyana Elections Commission should possess.”
Among the requirements the President stated were that the person must not be an activist of any form (gender, racial, religious, etc); that the person must have no political affiliation; and that the person should have the general characteristics of honesty, integrity, faithfulness, and diligence.
The Opposition Leader had said that he had “grave reservations” about the legality and constitutionality of the criteria set by the President.
The CCJ found that the process was flawed and in breach of the Constitution.
Justice Rajnauth-Lee stated that by giving reasons why nominees are rejected, the President will engender greater public trust and confidence in the Elections Commission.
The Court concluded that the most sensible approach to the process of appointing the Chairman of GECOM is for the Leader of the Opposition and the President to communicate with each other in good faith and, perhaps, even meet to discuss eligible candidates for the position of Chairman before a list is submitted formally.
