…says part of elaborate plan to rig the next elections
Opposition Leader Bharrat Jagdeo, in a press statement issued earlier today, regarding President David Granger’s request for a second list of nominees for the post of Chairman of the Guyana Elections Commission (GECOM), stated that he believes “the President is laying the foundation for the unilateral appointment of a Chairman of GECOM of his own choosing”.
Jagdeo noted that such appointment will not only be unconstitutional but will compromise the integrity of the electoral machinery tasked with conducting free, fair and transparent elections in Guyana.
“President Granger is the first President who has ever rejected a list submitted by a Leader of the Opposition. This is not without significance. We think that this is the beginning of an elaborate plan to rig the next elections. We feel that the President is laying the foundation for the unilateral appointment of a Chairman of GECOM of his own choosing”, the statement noted.
On Monday Granger wrote Jagdeo, indicating to him that the nominees he (Jagdeo) submitted for consideration for the post of Chairman of GECOM were “unacceptable” and asked that a second list be submitted for his consideration.
During a media brunch held at State House on Sunday, President Granger justified his decision to refuse the list of nominees submitted by Jagdeo, stating that Guyana’s Constitution asserts that a current or sitting judge or someone eligible to be a judge in Guyana or the Commonwealth Caribbean is preferred to be appointed as Chairman of the electoral body.
However, legal luminary Anil Nandlall, who also served in the capacity of Attorney General and Minister of Legal Affairs under the previous administration, explained that the Constitution clearly contemplates two categories of persons for the post: “Firstly, a High Court judge or an Appellate Court judge, a former High Court or an Appellate Court judge or a person qualified to be a High Court or an Appellate Court judge. Secondly, or (disjunctive), any “fit and proper” person. However, from whichever category the persons come, they must be acceptable to the President”.
The list of nominees submitted by Jagdeo after extensive consultations with various stakeholders include: Governance and Conflict Resolution Specialist, Lawrence Lachmansingh; Attorney-at-Law and Chartered Accountant, Christopher Ram; businesswoman and former broadcast executive, Rhyaan Shah; Retired Major General, Norman Mc Lean; Business Executive, Ramesh Dookhoo and History Professor, James Rose.
Following is the full statement issued today by the Leader of Opposition:
The PPP wishes to express its deepest concern at President David Granger’s rejection of the list of six names submitted to him by the Leader of the Opposition, Bharrat Jagdeo, for the appointment of a Chairman of the Guyana Elections Commission, in accordance with Article 161(2) of the Constitution of the Co-operative Republic of Guyana. The reasons advanced by President Granger, both in a letter to the Leader of the Opposition, as well as conveyed by the media reporting what the President said at an event held at State House, on the 8th of January, 2016, are indeed bewildering.
In his letter to the Opposition Leader, the President said that the CV’s of the persons whose names were submitted “do not seem to conform to the requirements of… Article 161(2)…” of the Constitution. In the remarks attributed to him by the media, President Granger seems to interpret Article 161(2) to require, only persons who are Judges, qualified to be Judges, or former Judges or, either a court having unlimited jurisdiction in civil and criminal matter or, a court having jurisdiction in appeals from any such court.
If the media reports accurately capture the sentiments expressed by the President, then the President’s interpretation of the Constitution is nothing short of a perversion of both the language and the spirit of Article 161(2). It cannot be justified in language, logic, law or, by the antecedent holders of the Office of Chairman of the Guyana Elections Commission.
For the avoidance of doubt, the relevant parts of Article 161(2) provides as follows:-
Article 161(2) “Subject to the provision 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 matter 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”
Significantly, we have listened to the audio and looked at the video of what the President said at the State House event and we note that he read, aloud, Article 161(2) but glossed over the vital seven words which are expressed in bold and underlined above, while greatly emphasizing other portions of the Article. We hope that it is not the view of the President that because he selectively de-emphasizes words in the Constitution, those words would lose their efficacy.
It is clear, that Article 161(2) provides for two categories of persons: a judge, a former judge and a person qualified to be a judge AND, “or any other fit and proper person”. Article 232(9) of the Constitution provides that the Interpretation and General Clauses Act, Chp 2:01, Laws of Guyana, shall apply for the purpose of interpreting the Constitution. Section (5) of the Interpretation and General Clauses Act provides that the words: “ “or”, “other” and “otherwise” shall be construed disjunctively and not as implying similarity, unless the expression “similar”, or some equivalent expression, is added”. Therefore, the phrase “or any other fit and proper person” allows for person without legal qualifications and make them as eligible as a judge, a former judge, or person qualified to be a judge.
A brief review of the history of those who have held the Office of Chairman of Elections Commission from 1992, under the current constitutional or a similar formula, will illustrate that only Doodnauth Singh SC, possessed legal qualifications. All the others, were deemed qualified under “the fit and proper person” category. These persons include: Rudy Collins, a Career Diplomat, Edward Hopkinson , a Geologist, Joseph Singh, a retired Army General and Dr Steve Surujballi, a Veterinary Doctor. Significantly, Mr. Joseph Singh and Dr. Steve Surujballi, were appointed from lists submitted by the Opposition Leader, Mr. Desmond Hoyte, a Senior Counsel. Additionally, the following persons who do not possess legal qualifications were on lists submitted by Mr. Hoyte to the President for appointment as Chairman of the Guyana Elections Commission: Edward Hopkinson, Charles Liburd, Joe Singh, Dennis Craig, David Granger, Gem Fletcher and Harold Davis. It is to be noted that the last five names along with Justice Rudolph Harper, were the names submitted by Mr. Hoyte, to President Jagdeo in 2000. Only Mr. Harper, possessed legal qualifications on that list. Is President Granger now saying that Mr. Hoyte SC, violated the Constitution? Is he saying that he lent his name to a violation of the Constitution when he accepted his name to be placed on that list since he does not have any legal qualifications?
When this formula was conceived by President Jimmy Carter, in 1991, it was designed and intended to achieve consensus between the Government and the Opposition. Hence, the list emanates from the Opposition, but must find acceptance with the President. This formula was constitutionalized unanimously in 1995 in the National Assembly. It was retained by the Constitutional Reform Commission 1999-2001. The Speeches in the National Assembly and the notes of the Constitutional Reform Commission lauded the formula for its consensual characteristics.
Additionally, we must emphasize that GECOM’s composition was also designed to achieve a particular degree of equilibrium; hence, the composition three nominees from the governing party and three nominees from the opposition with the chairman holding a balance with the power of a casting vote. If the President is permitted to unilaterally appoint a chairman of his own choosing, then it will fundamentally alter that vital balance. This will result in a tremendous loss of confidence in an already publicly impugned elections commission.
Significantly, though the Opposition Leader was not constitutionally obliged to do so, he held widespread public consultations with almost every major representative organization in the country. It is these consultations which produced the list submitted by the Leader of the Opposition to the President. A rejection of this list is therefore a rejection of the voices of all these organizations. Is the President saying that all these organizations have interpreted the Constitution wrongly, and only his interpretation is correct?
President Granger is the first President who has ever rejected a list submitted by a Leader of the Opposition. This is not without significance. We think that this is the beginning of an elaborate plan to rig the next elections. We feel that the President is laying the foundation for the unilateral appointment of a Chairman of GECOM of his own choosing. Such an appointment will not only be unconstitutional but will certainly compromise the integrity of the electoral machinery. We always knew that once the PNC holds the seat of Government democracy will be under threat. Our fears are becoming a reality. We call upon the diplomatic community, civil society organizations, the Guyana Bar Association, the Guyana Association of Women Lawyers, the Berbice Bar Association, the Guyana Human Rights Association, the Red Thread, the labour movement, the religious organizations, the Private Sector Commission and indeed, every right thinking Guyanese to raise their voice against this self- serving, twisted and grossly erroneous interpretation of our constitution and to condemn this intended assault on our democracy.