Rejected GECOM list: President’s discretion does not accord with rest of society- Nandlall

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Expressing utter disappointment in President David Granger’s “cavalier rejection” of the second list of nominees submitted by the Opposition Leader for the position of Chair of the Guyana Elections Commission (GECOM), former Attorney General and Minister of Legal Affairs, Anil Nandlall, has said the President has managed to make what was historically a very smooth and straightforward exercise one that is now complicated and politically acrimonious.

Former Attorney General Anil Nandlall

“Like every other reasonable-minded Guyanese, but moreso because I played a role in assembling both lists of persons which the Opposition Leader submitted to the President for the appointment of a Chairman of GECOM, I am disappointed by the President’s rejection of these lists,” Nandlall expressed.

“I also maintain — and with due respect — that the President cannot seriously boast a better understanding of the Carter Formula and its constitutionalisation, expressed in Article 161 (2), than Mr Hugh Desmond Hoyte, S.C. This is so because Mr Hoyte participated in the coinage of the Carter Formula, and was an eminent senior counsel, and was therefore schooled in the interpretation of a constitution.

“Mr Hoyte participated four times in the process of compiling names and submitting them to different presidents of the PPP Administration, with seamless ease and without any controversy whatsoever,” Nandlall commented.

He said those who are “now contaminating the President’s mind with absurd legal advice” in relation to the interpretation of Article 162 were around at that time but would not have dared to try that with Mr Hoyte.

“He would have simply not tolerated it because he knew better,” the former AG posited. “Unfortunately, what we now have is a bizarre interpretation of Article 162, which distorts both the letter and the spirit of the Article,” he said.

“For example, the President tells us that Article 161 (2) (does the following): (1) accords priority in relation to persons who are judges, former judges, and persons qualified to be judges over and above “any other fit and proper person”, when the Constitution does no such thing

“(2) That these persons must not be religious leaders or part of any faith-based organization. Again, the Constitution does not so discriminate.

“(3) That the person (chosen) must not be an activist in areas such as human rights, gender discrimination, etc. Again, Article 161 (2) contains no such exclusion

“(4) That all six persons must be found acceptable before the President chooses one. In other words, if five are (acceptable) and one is not, then the entire list becomes unacceptable. And therefore the President refuses to choose one from the five, though he finds them acceptable.”

Nandlall said it is this erroneous and warped interpretation which has misled the President in rejecting the two lists submitted.

“Unless this abysmal error is corrected, this cyclical exercise of submission and rejection of lists may become never-ending,” Nandlall declared. “I must reiterate that while Article 161 (2) resides with the President a discretion insofar as the list must find his acceptance, this discretion cannot be capriciously and whimsically exercised. It must be exercised reasonably, and the President is obliged to take into account only relevant considerations, and discount from his mind irrelevant considerations,” Nandlall expressed.

He pointed out that the methodology employed by the Leader of the Opposition in compiling these two lists proves that the President’s exercise of his discretion does not accord with the rest of the society.

“In my view, that is a strong indication that the President is wrong. The Leader of the Opposition did not compile these lists by himself. Rather, these names were generated from a wide consultative exercise involving the major stakeholder organisations in this country. These organisations consulted with their respective constituencies and produced these names. These constituents number tens of thousands of people. It is simply illogical to argue that all of these people are wrong and the President and his legal advisors are right,” Nandlall declared.

Nandlall has said that finding another six names in compliance with the President’s fallacious construction of Article 161 (2) of the Constitution would now become near impossible. He pointed out that the pool to draw from has become significantly narrower.

“More importantly, more persons would become even more reluctant to offer their names, for fear of the public damage and humiliation to their professional reputation, character and image by the President’s cavalier rejection of their names,” Nandlall stated.

In the circumstances, he said, the nation has no alternative but to hope that the proposed engagement between the President and the Leader of the Opposition would result in the President realising he had misinterpreted Article 161 (2).

“If not, the consequences to this nation may be dire, for which the President will have to accept responsibility,” Nandlall has charged.

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