THREE QUESTIONS ANSWERED

Mar 19, 2010 Features / Columnists, Peeping Tom

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Today’s column addresses the following three questions:
1. Is it possible for the PPP to select a presidential candidate for the 2011 General Elections and then having won those elections, appoint someone else as President?
2. How is it that the Guyana Elections Commission (GECOM) is supposed to be responsible for the conduct of elections in Guyana, yet it is the Minister of Local Government who sets the date for those elections?
3. The main opposition feels that the holding of local government elections without the implementation of agreed reforms will be unconstitutional. Can GECOM go along with this position?
It has been suggested that since there are no constitutional restraints to the PPP appointing as its presidential candidate someone who has already served two elected terms, there is nothing to stop the PPP from selecting Mr. Bharrat Jagdeo as its presidential candidate for the next general elections and then make him the Prime Minister so as to satisfy the constitutional edict that no president can serve a third term.
While anything is possible, it makes no sense for the PPP to appoint Bharrat Jagdeo as its presidential candidate. If it does so it will force a constitutional crisis since having won the elections, the party’s presidential candidate would be unable to assume the Presidency.
The Constitution of Guyana is quite clear on how the President is elected. The presidential candidate of the party winning the most votes at the elections is deemed to have been elected the President. The person elected is so declared by the Chairman of the Guyana Elections Commission acting on the advice of the Chief Elections Officer. Thus, the party winning the election does not have a say in deciding who is sworn in as President. The person deemed to have been elected as President is the presidential candidate of the party winning the greater number of votes at the elections.
There is also no sense in the PPP choosing someone as its Presidential candidate and then finding out that the person cannot assume the presidency. The presidential candidate of the winning party is the person who is deemed to be the elected president and who is thus sworn in as President.
The second question deals with the seeming contradiction between GECOM being responsible for the conduct of elections, yet it is the Minister of Local Government who sets the date for local government polls.
This practice is consistent with existing tradition which leaves the date of elections to the executive. The elections commission is entrusted with administering the elections, but since the setting of the date of elections is always a political function and elections can be called at any time during its terms by a government, this political decision is by convention the prerogative of the executive.
What the elections commission does, in the case of national elections, is advise the President that it is in a state of readiness for elections and to suggest a date when the election may be held, but the final decision in this instance rests with the President. The same thing applies for local government elections, except that in this case, it is the Minister of Local Government who announces the date for these polls.
The main opposition has written the Guyana Elections Commission indicating that the holding of local government polls without agreement and legislating of local government reforms may be unconstitutional.
The main opposition may be relying on a provision in our constitution which states that parliament may make provisions for formulation and implementation of objective criteria for the purposes of the allocation of resources to local democratic bodies. It is assumed that the main opposition is contending that since there has been no provision enacted so far to deal with fiscal transfers to local government bodies, the holding of elections would be unconstitutional.
This is quite an ingenious argument, more so since if it is followed to its logical conclusion, then it can equally be said that since the fiscal transfer formula is not in place, then the very legality of local government bodies can be questioned.
The constitution simply indicates that parliament may make provision for an objective system for fiscal transfers to local government bodies. The failure of the government to enact these pieces of legislation does not outlaw the holding of local government elections.
GECOM can only refuse to hold elections if it finds that its actions would be in contravention of the law, and not because some law was not passed. The failure to pass reform laws is a political question which has to be addressed at the political level.
In any event, if the main opposition feels that the failure to enact the reform legislation deems the holding of elections unconstitutional, it should file an action in the courts to stop the holding of these elections, and not to write to GECOM suggesting that the holding of such elections would be unconstitutional.

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