I disagree with President Granger’s interpretation of the Constitution on the GECOM issue

Jan 26, 2017 Letters

Dear Editor,
A critical look at the appointment of the Chairperson of the Guyana Elections Commission (GECOM) would be aided considerably by a brief treatment of the historical background of this issue. When the PNC again prevailed in the 1985 Elections, five of the dissatisfied political parties, including, of course, the People’s Progressive Party (PPP) formed an alliance known as the Patriotic Coalition for Democracy. Through this alliance they petitioned both the local and international communities for intervention by way of electoral reform, presupposing that if there were no reforms to the electoral process then the PNC would retain office indefinitely. Burnham died in 1985 and HD Hoyte took over as President of Guyana. Hoyte was amenable to electoral reform and invited observers from the Commonwealth, and Former US President Jimmy Carter and members of the Carter Centre to visit Guyana in 1990 to assess our electoral conditions.
The Elections Commission was seen as a political pawn of the then government, and the issue of its lack of transparency gave rise to sharp political and social unease. This occasioned another observer mission in 1991; this time by Prime Minister George Price of Belize and Dr. Robert Pastor. The intervention of the international community and local advocacy led to the Constitution (Amendment) Act No. 15 of 1995 and Act No. 2 of 2000 respectively.
What is of concern is Article 161 (2) which is at the centre of the conflict between the government and the opposition. Before the 1995 Amendment, Article 161 (2) of the Constitution (subject to paragraph 6 of the Article) provided that “the Chairman of the Elections Commission shall be appointed by the President from among persons who hold or have held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who are qualified to be appointed as any such judge”.
Let us now move to the 1995 amendment: 161 (2) Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Minority Leader after consultation with the political parties represented in the National Assembly, other than the party to which the President belongs.
Now let us look at the 2000 amendment: 161 (2) Subject to the provisions of paragraph (4), the Chairman of the Elections Commission shall be a person who holds or who has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge, or any other fit and proper person, to be appointed by the President from a list of six persons, not unacceptable to the President, submitted by the Leader of the Opposition after meaningful consultation with the non-governmental political parties represented in the National Assembly.
Both the 1995 and the 2000 amendments carry the proviso: “Provided that if the Leader of the Opposition fails to submit a list as provided for, the President shall appoint a person who holds or has held office as a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Commonwealth or a court having jurisdiction in appeals from any such court or who is qualified to be appointed as any such judge”. You would no doubt observe that in the event that the Leader of the Opposition (Minority Leader) fails to provide a list then the President shall choose the Chairman in the same manner as before the 1995 amendment. See Article 161 of the 1980 Constitution.
The media report that Granger rejected the list because the nominees are neither judges nor persons possessed of the qualifications/qualities of judges, and as a consequence their suitability to be selected Chairperson of the Commission is not constitutionally permissive. If this is indeed the rationale of the President, then I am constrained to reject it. Professor Pollard seems to favour the President’s interpretation in this regard. Both the President and Professor Pollard seem to be conjoined in their opinion that ‘any other fit and proper person’ must be possessed of judge-like qualities to be suitable for consideration for the post of Chairperson of the Commission because the preceding requirement of a judge or person qualified to be appointed as a judge sets the tenor for the qualities to be possessed by the ‘fit and proper person’.
Professor Pollard says, “The employment of the pronoun “other” speaks volumes and must be interpreted to mean that such “other fit and proper person” must possess the characteristics of the two-named preceding persons.” I am minded that this is potentially dangerously unpopular, but, with the greatest of respect, I beg to differ with both the President and Professor Pollard on their interpretation in this regard. This appears to me to render ‘any other fit and proper person’ a redundant consideration.
Ronald J. Daniels

1 thoughts on “I disagree with President Granger’s interpretation of the Constitution on the GECOM issue”

carl veecock January 26, 2017 at 2:03 pm

You are ever so right Ronald J. Daniels, but the myopic attitudes and thinking of the politicians in Guyana cannot change ( per Freddie K a backward country!)

I have referenced former President Hoyte’s submissions as being made by him as a person learned in law. Granger is not learned in law and his readings of the applicable law is completely warped and lacking in legal understanding.
But what is probably the political machination lurking offside will soon come to the fore, then we will all say ‘ now ah see’!