There is no urgency to appoint a Chairperson of GECOM

Jan 22, 2017 Features / Columnists, Peeping Tom

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People must not be overawed by titles. They must not believe that because someone has held certain positions of importance or prominence that whatever that person says must be accepted as gospel.
It does not require an expert for the law to be understood. The law can be understood by the average citizen using common sense.
There are rules of legal interpretation. The principal rule is to first rely on the ordinary meaning of the words used in the construction of the statute.
The ordinary usage of “or any other” clearly is disjunctive. But some people want to interpret it as conjunctive.
The second general principle is if the ordinary meaning of the words does not suffice, one can go to the intent of the legislation. There is no doubt here at all as to what was the intention of the constitutional enactments regarding the appointment of the Chairperson of the Guyana Elections Commission (GECOM).
The basis of the legislative changes which were promulgated was the Carter formula. The appointment of the Chairperson of GECOM cannot be delinked from the process of the appointment of the members of the Commission.
The formula which was retained in the revisions to our Constitution allows for the government to appoint three representatives to the Commission and for the opposition to appoint three. The Chairperson, who would most likely have to break any deadlock within the Commission, would be a person agreeable to both parties. This is how the provision was arrived at that the President would select a person from a list of names of six persons sent by the Leader of the Opposition. The person selected must be agreeable to the President.
It is a fair formula. It is like saying to two football teams, one will pick one linesman, the other will pick another linesman and the referee will be someone who both teams agree to.
The President’s interpretation of the Constitution has been questioned. There is a dispute over that interpretation. It should be challenged on the basis of the common interpretation of the constitution, and on the basis of the intention of its framers.
There is another limb on which the President’s interpretation can be challenged. The selection of someone chosen from a list of six persons submitted by the Leader of the Opposition has been a settled practice. It has become part of a constitutional convention.
The problem in Guyana is that reason and common sense have become victims to partisan political divisions, and many persons will believe and accept the positions of their respective leaders without trying to ask themselves whether the position adopted makes any sense.
The bottom line is that there is now a difference in legal interpretation over the Constitution. There was never such a difference in twenty-five years when the constitutional convention was developing. We now have an ingenious interpretation of a constitutional provision.
If there is a difference in interpretation, then the rightful thing is for the matter to be resolved by the guardians of our Constitution, our Courts. The ruling coalition, when in opposition, had always contended that the responsibility for legal interpretation of legislation rests with the Courts. But when the very Courts ruled against them in relation to the actions within the legislature, they contended that the judiciary could not encroach on that territory.
If there is a difference in interpretation of legislation, then the matter should be settled by asking the Court for a legal interpretation. But the Leader of the Opposition is quite aware of the history of antics by the now ruling coalition who, when a judgment is not in their favour, attack the judges. To avoid claims of bias or partisanship in judgments, the Leader of Opposition is suggesting that the interpretation come from the Caribbean Court of Justice, the highest Court in the land.
There may be problems with jurisdiction here. The CCJ in its appellate jurisdiction will have to first determine whether its role includes interpreting legislation or whether it is simply to hear appeals from the appellate courts.
There is no urgency for appointing a Chairman of the Guyana Elections Commission. Elections are not due until the next three years. So there is time for the local courts to be approached for an interpretation, and for all sides to exercise the option of appealing any decision of the local court to the CCJ.
As things now stand, the Leader of the Opposition cannot submit any additional list, because the President has said that he will only appoint someone who is either a judge or has judge-like qualities. This is not how the opposition and some others in society (not necessarily with opposition-like inclinations) interpret the Constitution.
The Leader of the Opposition has to be clear about the legal characteristics which nominees should possess. There is a difference in interpretation on this question which can only be resolved by recourse to the legal guardians of the Constitution – our court

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