GECOM Chair Ruling: Plaintiff to appeal, says Chief Justice ‘extended herself beyond case requirement’

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Following Chief Justice (ag) Roxane George’s ruling on Monday which overruled President David Granger’s interpretation of the Constitution regarding the appointment of a chairman for the Guyana Elections Commission (GECOM), finding that there is no particular preference for the appointment of persons within the Judiciary, the complainant in the case, businessman Marcel Gaskin says he gave his attorneys instructions to “immediately lodge a Notice of Appeal.”

Marcel Gaskin

Gaskin, a businessman and engineer, had moved to the High Court in March of this year to challenge the constitutionality of President Granger’s reasoning behind his rejection of Opposition Leader Dr Bharrat Jagdeo’s list of six nominees for the post of GECOM chair.

While the honourable Chief Justice’s ruling was welcomed by Gaskin, he felt that she erred in a section of her ruling, where, according to him, she went beyond what was asked of the court. Gaskin highlighted that the acting Chief Justice went to address the proviso to Article 161 (2) which applies to the instance of the Opposition Leader failing to submit a list.

“This was never an issue for us since the Leader of the Opposition submitted not one but two lists of persons for nomination as Chairman of GECOM. Unfortunately, by extending herself beyond the requirement of my case, the Madame Chief Justice made a gross error in ruling that the President is not obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable (sic) as a fit and proper person for appointment,” Gaskin pointedly stated on Monday.

His statement categorised that subsidiary aspect of the ruling as a non-sequitur (does not follow), which, in his opinion, creates “unnecessary misunderstanding and confusion”. In this light, Gaskin disclosed that he gave his attorneys instructions to “immediately lodge a Notice of Appeal”.

Meanwhile in a released statement, the Attorney General’s (AG) Chambers said that the Chief Justice’s ruling confirms that “it is the President who must determine that the list is acceptable. The Chief Justice also confirmed that it is the President acting in his own deliberate judgment who must determine whether a person is fit and proper.The Chief Justice also advised that there is no legal requirement for the President to state reasons for rejecting a list, through modern thinking suggests that he should.”

Moreover, the AG Chambers outlined that based on the Chief Justice’s advise “the President is not obligated to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as fit and proper persons for  appointment.”

The AG Chambers continued that “the Chief Justice advised that each person must be considered by the President unless the President provided the Leader of the Opposition with guidelines of who is unacceptable; President Granger did provide the Leader of the Opposition  with a list of criteria for a Person to be qualified for the position of Chairman of the Guyana Elections Commission. The Leader of the Opposition did not object to those criteria and submitted a second list.”

As such the releases states that “the President does not have to submit more than one list. He could have gone ahead and appointed a Chairman having rejected the list.”

Acting Chief Justice
Roxane George, SC

Since the matter was filed, the acting Chief Justice heard submissions from the various parties, which included Gaskin’s lawyer Glen Hanoman. President Granger, however, held out that Article 161 (2) of the Constitution prescribes for the Chairman of the Elections Commission to be “a person who holds or who has held office as a judge of a court…or who is qualified to be appointed as any such judge, or any other fit and proper person…”

Included in Justice George’s ruling on Monday was that the persons proposed for the post of GECOM Chairman must have judge-like qualities and possess integrity, honesty and impartiality. She also said that the word “any” in the other category , “any other fit and proper person” widens the category and “does not restrict the qualification or profession” from which the nominee should be drawn, and noted that there was no mandatory category and all the categories have equal weight.

Meanwhile, at the High Court on Monday, Justice George nullified the arguments made by the Attorney General’s Chambers, saying that the President needed to give good reasons for rejecting all or any nominees. This, she said, will be in furtherance of democracy and good governance.

Should the Head of State present his reasons for rejecting the nominees, it would give an indication of who is acceptable, she said.

She also said if one of the six nominees was acceptable, one would expect that the person would be appointed to the position of GECOM Chairman as there is no need for everyone on the list to be acceptable. She said, however, that the President has the discretion to reject the entire list.

Having interpreted “fit and proper” to mean another group of qualified persons, the Opposition Leader in December submitted his first list. However, the Head of State rejected that list on his aforementioned grounds.

Jagdeo had submitted a second list, which the Head of State also rejected. A third list is slated to be presented.

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