“l wish on behalf of the Leader of the Opposition, Hon. Bharrat Jagdeo, M.P., to inform you that Mr. Jagdeo is prepared to meet with the President at any time, and, on a daily basis if needs be, to address the appointment of a new Chairman of the Guyana Elections Commission consistent with the ruling of the Caribbean Court of Justice ruling on June 18, 2019,” Gail Teixeira of the Opposition Leader’s Office told Director-General of the Ministry of the Presidency, Joseph Harmon in a letter on Tuesday.
The appointment of a new GECOM Chairman is seen as crucial to the conduct of general elections following the passage of a no-confidence motion against the Granger-led administration on December 21, 2018. The CCJ has ruled that the motion was validly passed, but Granger has insisted that there must be house-to-house registration to clean up the voters’ list, while Jagdeo is adamant that Guyanese must go to the polls in either August or September with the existing voters’ list after it is updated through a claims and objections process.
The Opposition Leader’s Office specifically asked the President, through Harmon, to pay “specific attention” to paragraphs seven, nine, 10 and 11 of the CCJ’s judgement on Granger’s unilateral appointment of Patterson.
Paragraph 7: In 1999, a Constitutional Reform Commission recommended, amongst other things, that “the Chairman of the [Electoral] Commission should be full-time and should be selected on a consensual process” as provided for in the 1995 Act. This recommendation was adopted by the National Assembly and incorporated into the Constitution Amendment (Act) No. 2 of 2000 with minor changes in the language. The Court noted that the evolution of Article 161 (2) had been characterised by a significant and deliberate shift from exclusivity and unilateralism, on the part of the President, to inclusion and consensualism as between the President and the Leader of the Opposition.
Paragraph 9: The Court decided that the most sensible approach to operationalising the Article was 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 formally submitted. The aim of these discussions must be to agree the names of six persons who fit the stated eligibility requirements and who are not unacceptable to the President. In this regard, the Court noted that the Constitution anticipates that the Leader of the Opposition and the President will conduct themselves in a reasonable and responsible manner, eschew partisanship and seek the best interests of the Republic and the Guyanese people.
Paragraph 10: The Court was also of the view that the employment of the double negative ‘not unacceptable’, signals 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. By a majority, the Court found that the President should only find a nominee unacceptable for some good reason on objective grounds. If a President were permitted, capriciously or whimsically, without proffering a good reason, to reject eligible nominees, this would frustrate the proper working of the Constitution, defeat the intention behind the amendment to Article 161 (2) and pave the way for unilateral presidential appointment. The Court found that once the President and the Leader of the Opposition have “hammered out a list of names not unacceptable to the President”, the list, comprising the 6 persons, must then formally be submitted to the President by the Leader of the Opposition and the President must then select the Chairman from among those names. In the Court’s view, such an approach gives the President a role in the identification of the six names, but obviates the possibility that, after the formal presentation of the list, the President could suggest that one or more of the names, or indeed the entire list, is ‘unacceptable’. In those circumstances, a unilateral appointment by the President in keeping with the proviso to Article 161(2) can hardly be an option if the Leader of the Opposition demonstrates a willingness to engage in good faith the process outlined above.
Paragraph 11: The Court reviewed what transpired between 22 November 2016 and 19 November 2017 and determined that the President was not entitled to lay down, as a precondition to considering a nominee, eligibility requirements that were additional to or at variance with those prescribed by the Constitution. The Court emphasised, however, that nothing in its judgment was intended “in the slightest degree” to cast aspersions on Justice Patterson’s competence and suitability for the position of Chairman of GECOM. Nor was there any suggestion that His Excellency had acted otherwise than in good faith. Accordingly, in view of the unfortunate process that was followed, the imposition on the Leader of the Opposition of criteria that were not sanctioned by the Constitution, and the absence of cogent reasons for deeming unacceptable the candidates and lists provided, the Court concluded that the process that was followed in the appointment of Justice Patterson was flawed and in breach of Article 161(2). In this regard, the Court overruled Gaskin to the extent that its judgment was in contradiction with anything that was stated in Gaskin.
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