Bar Association gets green light in judicial review on Gecom chairman

The Guyana Bar Association (GBA) was yesterday granted permission to intervene in the Marcel Gaskin matter which seeks clarity from the court on the President’s criteria for the selection of a Gecom Chairperson, including whether a judge must be among the nominees for the post. The GBA had filed an application in the court earlier this month and July 6 was the date set for the hearing. However acting Chief Justice Roxane George heard the matter yesterday.

When contacted yesterday, President of the Bar Council of the GBA, Kamal Ramkarran told Stabroek News that none of the parties (Gaskin, Opposition Leader Bharrat Jagdeo and the Attorney General) involved objected to the Bar Council’s request. Jagdeo and the AG are listed as respondents in the case.

He said that the Chief Justice gave the Bar Council until June 21 to file and serve legal submissions. The matter was later adjourned to June 27 for report.

During an interview with Stabroek New on Wednesday, Ramkarran had said that the Civil Procedure Rules 2016, allows for such an intervention without one actually becoming a party to the matter.

A copy of the GBA’s application which was seen by this newspaper stated that permission is being sought for intervention as a “friend of the court” without becoming a party for the purpose of rendering assistance to the court by way of argument.

The grounds outlined in the application noted that among the aims and objectives of the GBA are to uphold the rule of law and to express the corporate opinion of the Bar in such quarters as is deemed from time to time desirable and generally to do all things conducive to the attainment of its aim and objects; the substantive proceedings in this matter touch and concerns matters of national importance which have a bearing on the rule of law and the Bar Council believes that due to the nature of the matter, it has a duty of offering assistance to the court as a friend by intervening without becoming a party and presenting arguments on the issues raised in substantive proceedings.

Gaskin, a businessman, had approached the court in March seeking a declaratory order on whether the list of nominees to be submitted to the President by the Leader of the Opposition, under Article 161 (2) of the Constitution, must include a judge, a former judge or a person qualified to be a judge.

His move to court came amidst a stalemate after the first list of nominees submitted by Opposition Leader Bharrat Jagdeo was rejected as unacceptable by President David Granger, who has been arguing heavily in favour of a judge or a person with those qualifications to be Chairperson. (A second list was also rejected by Granger two Fridays ago.)

Gaskin also sought declarations on whether the President is required under the Constitution to state reasons for deeming each of the six names on the list submitted as unacceptable; whether the President is obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as a fit and proper person for appointment; and whether a finding of fact by the President that any one or more persons is not a fit and proper person renders the entire list as unacceptable.

Justice George had deferred the case to Friday in order to allow representatives of the Attorney General’s Chambers enough time to examine written submissions and to prepare to answer her questions.

Asked what sparked the GBA’s interest in the matter when it is is almost at an end, Ramkarran told Stabroek News that the proceedings are still pending before the court while stressing that this is an important constitutional issue. He said that the Bar Council feels that “we should say something if there is something that we can say.

If we can give assistance to the court and offer an objective view …we are not going to take sides…we just want to offer an objective view”, he said.

Ramkarran stated that the Bar Council wants to provide assistance to the court if it is needed. He said that the Bar Council is made up of a group of 12 lawyers, many of whom are senior in practice and experience. “If together as a group of 12 lawyers, we can look at this matter, discuss it among ourselves, come up with some argument that could assist the court, there is no reason why we should not do so”, he said.

Gaskin, in his affidavit in support of his application, said he had been advised that the list submitted by the Leader of the Opposition to the President met the requirements of Article 161 (2).

He said the President has exercised his discretion in relation to the appointment by emphasising, “I am going to choose somebody who is fit and proper to be a judge.”

However, Gaskin added, “I have since learnt from several sources that Mr Christopher Ram… is a person who is qualified to be a judge, having been admitted to practice law for more than the prescribed seven years.”

Gaskin also said that he had undertaken research and had consulted with persons associated with all the elections since 1992. “My research shows that only one of the past Chairmen of Gecom since 1992 was a person who was a judge or a person qualified to be a judge.”

Jagdeo’s attorney, Anil Nandlall, in his submissions, has argued that in applying certain principles to Article 161 (2), it is clear that it is not within the President’s power to determine who a “fit and proper person” is.

He said the President’s discretion lies in determining whether a person is acceptable or not and that in exercising this power, the president is obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily.

The GBA in a recent statement expressed concern at the non-appointment of a Gecom chairman and said that the vacancy ought to be filled urgently.