(The following is an opinion piece by Mohabir Anil Nandlall, MP., Attorney-at-Law)
It is now dated news that the President has rejected the list of nominees presented to him by the Leader of the Opposition to fill the position of Chairman of Gecom in accordance with Article 161(2) of the Constitution.
In so doing, the President has etched his name in history as the first President to have done so since the Carter Formula was implemented for the 1992 Elections. So we are now navigating in unchartered waters. The President has compounded the issue by the erroneous impression which he conveyed when he spoke to the media at a function at State House last Sunday.
In his remarks, the President communicated the misguided impression that only judges, former judges or persons qualified to be appointed as judges to the High Court or an appellate court qualify to be appointed as Chairman of the Elections Commission. The President omitted to disclose that in addition to those possessed of legal qualifications, the Constitution also provides for… “or any other fit and proper person” to be appointed as well.
As a result of a deluge of public criticisms, Attorney-General, Mr. Basil Williams has conceded that Article 161(2) also caters for the latter category of persons. However, characteristically, the AG has added a new set of confusion in his attempt to clarify. Two very conspicuous blunders were made by the AG which ought not to be left in the public domain, unchallenged.
Firstly, the AG contends that after rejecting lists submitted by the Leader of the Opposition, “the President will be forced to make an appointment.” I submit that the President has no such power. It is only in the event that no list is submitted by the Leader of the Opposition that the President has a power in Article 161(2) to make a unilateral appointment. I am not only fortified in my view by the letter of the Article but also by its spirit and the intendment of its framers.
The Carter Formula was intended and designed to create, as far as possible, a politically consensual and balanced Elections Commission. Hence, the Commission is composed of three (3) commissioners nominated by the Opposition parties in Parliament and three (3) commissioners nominated by the governing party, along with a Chairman who has a casting vote. This Chairman comes from a list of six which emanates from the Leader of the Opposition but which must find the acceptability of the President and from which he is empowered to choose one. If the Chairman is to be chosen by the President alone, it would destroy the vital equilibrium which the Elections Commission was intended to possess.
Secondly, the AG posits: “the Constitution gives him [the President] that power to determine who is a fit and proper person.” The Constitution does no such thing. The Constitution resides in the President a discretionary power to determine whether the persons are unacceptable or not; not whether they are fit and proper person. Whether a person is fit and proper is to be objectively determined having regard to the context and circumstances which are under consideration.
The term “fit and proper person” can be found in Constitutions and in legislation throughout the world. Expectedly, it has been the subject of judicial interpretation in various territories. In the U.K., Lord Bingham, speaking on the phrase “fit and proper person,” said: “This is a portmanteau expression, widely used in many contexts. It does not lend itself to semantic exegesis or paraphrase and takes its colour from the context in which it is used. It is an expression directed to ensuring that an applicant for permission to do something has the personal qualities and professional qualifications reasonably required of a person doing whatever it is that the applicant seeks permission to do.” (R v Crown Court at Warrington, Ex p. R.B.N.B  1 W.L.R. 1954, 1960.
In Shanmugavel v Bahamas Medical Council  3 LRC 448, the Bahamian Court of Appeal had to consider the Medical Act in determining whether the Appellant, a medical doctor, was qualified for renewal of his registration to practise medicine in the islands. Among the requirements laid down by the Act to be registered to practise medicine was that the person is “a fit and proper person to practise medicine in the Bahamas.” In the course of the judgment, their Lordship observed: “the expression ‘fit and proper person to practise medicine in the Bahamas’ is not defined in the Act and it would be inappropriate, we think, for us to attempt any exhaustive definition of the expression. Suffice it to say though s 15 of the Act catalogues some conduct which may lead to disciplinary action and sanctions, including removal of a medical doctor’s name from the register, and it is to that, and the plethora of English authorities, we looked at to in an attempt to determine whether the conduct of which the appellant was accused was the kind of conduct that would justify a finding that he was not a fit and proper person to practise medicine in the Bahamas.”
In the above case, it is clear that the issue of whether a person is fit and proper for the purpose of the Medical Act in the Bahamas turned on largely on whether that person was guilty of any professional misconduct or malpractice.
In Re Chikweche  2 LRC 93, the Supreme Court of Zimbabwe had to consider whether the applicant, a lawyer qualified to practise law under the Legal Practitioners Act which contains, apart from the prescribed legal qualifications, a “fit and proper person” requirement. The applicant was a Rastafarian who wore dreadlocks. A judge refused permission to register him as a lawyer as is legally required in that country, on the ground that the applicant was not “properly dressed.” The judge specifically objected to the dreadlocks. The applicant challenged the decision on the ground that it infringed his fundamental right to freedom of conscience guaranteed by the Constitution. In dealing with the “fit and proper person” issue, Chief Justice Gubbay stated: “Construed in context, the words ‘fit and proper person’ allude, in my view, to the personal qualities of an applicant- that he is a person of honesty and reliability. See State v Mkhise 1988 (2) SA 868 at 875. I am not persuaded that the lawmaker intended by use of the phrase to embrace the physical characteristics of an applicant. For appearance bears no rational connection with the object of maintaining the integrity and honour of the profession.” The Court ruled that the Judge was wrong to reject the applicant as a person who is unfit and improper because of his hairstyle.
Importantly, in Law Society, Transvaal v Behrman 1981 (4) SA 538, the South African Court of Appeal ruled that whether an applicant is “a fit and proper person” for admission as an attorney-at-law, is a question of fact and it is not left to the discretion of the Court hearing the application.
In Democratic Alliance v President of the Republic of South Africa and others  2 LRC 617, the Constitutional Court of South Africa, comprising of 11 judges, had to consider section 179 of the Constitution of the Republic of South Africa 1996 established a National Prosecuting Authority, with a National Director of Public Prosecutions as its head. Under s 179(1)(a), the National Director was to be appointed by the President. Section 9(1)(b) of the National Prosecuting Authority Act 1998 provided that any person appointed to the position of National Director had to: “(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and (b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.” A challenged was launched, on the ground, inter alia, that the National Director was not a “fit and proper person.” The Court ruled that it was not the President’s function to determine whether a person to be appointed to that position is a fit and proper person; that requirement is “an objective jurisdictional fact.” Further, that in assessing the qualifications of an applicant for that position, the President is enjoined by law to act rationally and reasonably.
Applying these principles to Article 161(2) of the Constitution of Guyana, it is clear that it is not within the President’s power to determine who is fit and proper person; that who is fit and proper person is an objective fact. That the President’s discretion lies in determining whether a person is acceptable or not. That in exercising this power, the President is obliged to act reasonably, rationally and objectively and not capriciously and arbitrarily. He must objectively assess the person’s ability to discharge the functions of his office, their integrity, political impartially and such like.
In light of the foregoing and to avoid further impasse, it is incumbent upon the President to disclose the grounds upon which he has found each of the six candidates, “not acceptable.”