The People’s Progressive Party (PPP) has rightfully challenged the President’s power to make a unilateral appointment. The President has seemingly violated the spirit of the Carter Formula. However, there will be no quick resolution to this legal issue. The judicial process, given historical precedents, of cases in Guyana and at the Caribbean Court of Justice (CCJ) will take around two years, unless both the ruling dispensation and the Opposition agree to an expedited process. The country cannot afford to wait for that process to conclude in order to prepare for elections. The work of the Guyana Elections Commission (GECOM) should not be left to languish while the matter makes its way slowly through the judicial process.
The two opposing judicial arguments in the court case are: the Constitution requires the President to choose from among the list (s) of nominees submitted by the Opposition versus the Constitution allows the President to make his own unilateral appointment (outside of the lists) if he finds none of the Opposition nominees as being fit and proper. The President indicated he found none of the nominees as being fit and proper, although one of them previously served as GECOM chair without any controversy and was highly rated by international observers. The court has to decide whether the President has this prerogative even though it is so stated in the Burnham constitution. But there was an unwritten agreement between the ruling party and the Opposition since 1991 that the GECOM chair will be chosen from among the nominees submitted by the Opposition.
From the outset, the President’s behaviour in rejecting the first list of nominees revealed his intention to choose someone he (his party) had confidence in from outside of the nominees proposed by the Opposition Leader as required by the Constitution.
In the Guyana, challenges to the President make their way to the High Court (Chief Justice) and then the Court of Appeal chaired by the Chancellor. The process is slow because of adjournments. The Appeal Court’s ruling can be challenged at the CCJ which is Guyana’s final court of appeal.
The Burnham constitution has a lot of holes (ambiguities) and both sides will focus on meanings of a few words that will be subjected to interpretation based on ambiguous meaning. The Carter Formula inserted into the Constitution states the President should appoint someone as GECOM chair from among the names submitted by the Opposition Leader. But it gives the President a way out by indicating that if none of the names is acceptable (not fit and proper) to the President, he can make a unilateral appointment. And this is the power Granger invoked in appointing James Patterson, an advisor to Granger and a People’s National Congress (PNC) supporter. Yes, the Granger appointment violates the spirit of the unwritten constitutional agreement made by Jimmy Carter between the governing party and the then Opposition. But it does not violate the written words of the Constitution that have been retained by both the PNC and PPP when the Burnham constitution was amended. That clause in the amendment should never have been retained (added). The clause gives an opening to the ruling party to make its own appointment. Now the PPP has (unwisely) found itself as depending on the court to give meaning to words in what is a highly politicised environment at a most critical time for the PNC that is thinking about extending its tenure in office – believing this can be done through advantages in its appointment of a chair. The powers of the Executive should have been curtailed ever since the PPP came to office in October 1992.
The PPP, understandably, does not have a choice but to go to court to challenge the appointment since all chairs have been selected through the Carter Formula since 1991. The party is concerned about electoral fraud given the history of the PNC on electoral frauds between 1966 and 1992. GECOM needs an un-aligned chair and there are several from among the 18 names submitted by Jagdeo.