Nominees list for Gecom Chair must include judge
– AG tells Jagdeo’s lawyers
Saying that the constitution leans heavily towards a judge being the “ideal person” to Chair the Guyana Elections Commission (Gecom), Attorney-General Basil Williams SC has informed lawyers for Opposition Leader Bharrat Jagdeo that any list of nominees solely comprising “any other fit and proper” candidate would be deemed unacceptable.
“…The Leader of the Opposition’s list of candidates must include the persons required by the Constitution in the priority category… A list from the Leader of the Opposition with candidates that only fit into the secondary category namely ‘any other fit and proper person’ would be an unacceptable list,” Williams wrote in a response to prior submissions by attorneys Anil Nandlall and Priya Manickchand on Article 161 (2) of the Constitution, which provides for the appointment of the Gecom Chairperson.
His response was delivered yesterday to Nandlall during a meeting that the latter described as futile, while noting that the AG failed to define the attributes of a “fit and proper” person.
Instead, Williams’ response, which was released to the press after the meeting, states that the President is empowered by the Article 161 (2) to deem a list acceptable or unacceptable. And, it adds, it is he who “ultimately decides whether a candidate is fit and proper for the office of Chairman of the Elections Commission.”
The engagement between Williams and the lawyers representing Jagdeo was in keeping with a recommendation made by President David Granger last month to resolve the impasse over the criteria for nominees for the post.
Granger had indicated that the list of nominees submitted by Jagdeo last year was unacceptable.
Article 161 (2) of the constitution states, “Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be a person who holds or who has held office as 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 who is qualified to be 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 after meaningful consultation with the non-governmental political parties represented in the National Assembly.”
Jagdeo’s list did not include a judge but rather candidates that he felt could qualify under the “fit and proper” proviso. The list comprised chartered accountant and lawyer Christopher Ram; business executive Ramesh Dookhoo; author and rights activist Ryhaan Shah; historian Professor James Rose; governance and peace practitioner Lawrence Lachmansingh and former Chief of Staff of the Guyana Defence Force and mining company executive Norman McLean.
Williams’ response said that when looking at the construction of the section that deals with who should be appointed Chairperson, “one can reason that the categories are in the order of preference. This order coupled with the use of the word shall (mandatory in this sense) conveys to us that the ideal person in the contemplation of the framers of the constitution is someone who falls into the first category namely, a judge or a person who has held office as a judge or a person who qualifies to be a judge.”
Supporting this proposition, he added, is the proviso to Article 161 (2) which states,
“Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as 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 who is qualified to be appointed as any such judge.”
As a result, Williams argued that Jagdeo’s list of candidates must include the persons required by the Constitution in the priority category.
Meanwhile, in a press release last evening, Nandlall said that the meeting with Williams yesterday was pointless as it achieved nothing.
He said the AG “simply essayed a response to my interpretation of Article 161 (2) of the Constitution, which I left with him the last time we met.
“In our view, this does not assist in resolving the matters of controversy. In fact, if we are to follow suit and reciprocate, we will end up creating another and new controversy, i.e., whether that cannon of statutory construction [the ejusdem generis rules] does or does not apply in Guyana. This simply distracts from the issue at hand.”
He contended that the AG “has abysmally failed to address the quintessential issue and the real crux of the matter: who qualify as/or what are the attributes of, ‘any other fit and proper person’” and added that he had predicted the engagement with Williams was “futile.”
Neither side provided any indication as to what the next step might be to ensure that this matter is resolved amicably.
Following President Granger’s rejection of his list of nominees, Jagdeo last month requested clarity on his interpretation of the criteria for the office holder and proposed an urgent meeting to resolve any differences they may have on the issue.
Jagdeo, by way of a letter sent to Granger, acknowledged a difference in interpretation of the constitutional provisions on the criteria for the nominees and proposed a meeting to resolve it. “…I hereby request that Your Excellency clarify what you interpret the qualifications are of the persons to whom Article 161(2) of the Constitution refers,” Jagdeo wrote, referring to a correspondence he had received from Granger on the rejection of his nominees. “I am of the considered view that an urgent meeting will immeasurably assist in reconciling any differences of opinion which may exist on this issue,” he added.
The opposition People’s Progressive Party (PPP) has said that it suspects that President Granger is laying the foundation for the “unilateral appointment” of a Gecom Chairperson, which it fears is part of a plan to rig the next elections. It argued that such an appointment would be “unconstitutional” and would “compromise the integrity of the electoral machinery.”