GECOM Chairman's appointment legal

-Appeal Court rules

The Appeal Court yesterday upheld the legality of President David Granger’s unilateral appointment of retired judge James Patterson as Chairman of the Guyana Elections Commission (GECOM), saying that he did not act unreasonably in doing so.

In an almost three-hour-long ruling, the court disagreed with arguments that President Granger’s resort to the constitutional proviso in Article 161 (2) for the unilateral appointment of Patterson was unlawfully invoked and resultantly dismissed the appeal brought by PPP Executive Secretary Zulfikar Mustapha to a previous ruling by Chief Justice Roxane George.

The court declared that the various lists supplied to the president by Leader of the Opposition Bharrat Jagdeo was not done in the manner contemplated by the framers of the constitution. As a result, acting Chancellor Yonette Cummings-Edwards and Justices of Appeal Rishi Persaud and Dawn Gregory, who heard the appeal, said the president could not thereafter be faulted for having invoked the proviso as he is legally entitled to do.

Upholding the Chief Justice’s ruling, the Justices of Appeal declared Patterson’s appointment to have been constitutional and that he was also “fit and proper” for the position as required by the constitution.

Expressing his disappointment with the ruling, Mustapha’s attorney, Anil Nandlall, said that he would be appealing to the Caribbean Court of Justice (CCJ), Guyana’s final court.

For his part, however, Attorney General and Minister of Legal Affairs Basil Williams, who expressed satisfaction with the ruling, said that the state’s legal team will be ready for any appeal.

The ruling was read, in parts, by all three judges, who agreed on the constitutionality of the appointment, although their reasons differed. Separate decisions are expected to be made available.

Article 161 (2) provides for the appointment of a Chairman based on a 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 threee lists, which were all rejected by Granger.

No engagement

Justice Gregory said that it was the intention of the framers of the constitution for the role of the

president and opposition leader in selecting a chairman to be a consensual one. Commenting on the historical evolution of the amendment of the article, she said the reason for the consensual element in the selection of a chairman of GECOM stemmed from the mistrust which can arise between the two contentious political factions and the need for an effective government.

It was for this reason, she said, that Article 161 (2) evolved to provide a more substantial role for the leader of the opposition in the entire selection process. In the absence of such a process, she noted that the appointment could then be made unilaterally.

Concurring with both the Chancellor and Justice Persaud, Justice Gregory said that the constitution contemplated for the provision of only one list, and after finding that list to have been unacceptable, the president could have at that point activated the proviso without going on to consider the other two lists provided by Jagdeo.

Referencing Nandlall’s position that that it was one list which was provided, but that an additional 12 names were added for the president’s consideration, the judges all said that there was no need for even the additions as the constitution provided in any event, for the consideration of only six names.

Justice Gregory said that as opposed to a process of engagement between the opposition leader and the president, as envisioned by the constitution, what the former did was supply names from which the president was confined to merely just make a choice of one. This, she said, “Did not amount to consulting.”

In the absence of engagement—a consultative, consensual process—the judge said that Mustapha’s appeal fell. According to her, it was for both parties to have decided on the manner of engagement, “as contemplated by the constitution.”

Specifically addressing the president’s resort to the proviso, Justice Gregory said that this was not done in the ideal manner as the constitutional framers intended to the extent that it was not activated after consideration of the first six names.

She, however, said that the president could not be faulted for invoking the proviso after a prolonged eight-month process by which time the Head of State had said that the appointment was warranted in the interest of the public and citing concerns of delay.

The judge then reasoned that the president’s resort to the proviso was neither unconstitutional nor unlawful. She resultantly dismissed the appeal.

The Chief Justice had also declared in her ruling that only a list of six names needed to be considered as this is what was stipulated by the constitution.

No legal requirement

As the Chief Justice had found, the Justices of Appeal also found that the president was “entitled to resort to the proviso once he found the list that was submitted to be unacceptable….”

Justice George had dismissed Mustapha’s challenge to the appointment as wholly misconceived, declaring, “I hold that there is nothing before this Court to permit a finding that the President acted unlawfully or irrationally in resorting to the proviso to Article 161(2), or to rebut the presumption that Justice Patterson is qualified to be appointed to the post of Chairman of GECOM.”

Also dismissing the appeal, Justice Persaud,