Legal challenge over appointment of GECOM Chairman ... Bar Association calls on State to uphold CJ’s declaratory orders

Legal challenge over appointment of GECOM Chairman … Bar Association calls on State to uphold CJ’s declaratory orders

Jul 23, 2017 News

The Bar Council of the Bar Association of Guyana has taken note of the remarks by President David Granger in relation the judgment of the Chief Justice Roxanne George in the matter of Marcel Gaskin’s recently concluded application for declaratory orders.
The Association, in a statement, noted that Gaskin, in proceedings that commenced on March 20, last, asked the Court to make certain declaratory orders on the meaning of Article 161(2) of the Constitution, which provides for the appointment of the Chairman of the Elections Commission. The proceedings came to an end on July 17, last when the Chief Justice made declaratory orders.
At the swearing-in ceremony of Judges on July 19, last, President Granger said, “The Chief Justice gave an appointment based on her perception of the law and I will continue to act based on my perception of the Constitution…”
The Bar noted that on the question of providing reasons for rejecting names on a list submitted to him for possible appointment to the post, the Head of State said, “If you can show me the article of the Constitution which requires me to give reasons, I will comply with the Constitution but I will not do what the Constitution does not require me to do”
The Bar Council noted that declaratory orders made by the Chief Justice, based on her application of principles of law, are not interpretations or opinions but, like all other orders of court, are pronouncements of the law made in formal proceedings on a particular legal state of affairs.
“The leading legal treatise on this type of order describes the effect of a declaratory order in the following terms whilst the defendant is assumed to have respect for the law, justice does not rely on this alone.
“A declaration by the court is not a mere opinion devoid of legal effect: the controversy between the parties is determined and is as a result of the declaration being granted. Hence, if the defendant acts contrary to the declaration, he will not be able to challenge the unlawfulness of his conduct in subsequent proceedings.
“The treatise makes it clear that the refusal to abide by a declaratory order may result in an order to enforce the rights established by the declaration.”
The Bar Council therefore expressed confidence that, similarly as in every other society which respects and safeguards the rule of law, the State will abide by the declaratory orders made by the Chief Justice.
Speaking with members of the press following a swearing in ceremony for Judges at State House President Granger said that interpretation of Article 161(2) by Chief Justice adds credence to his belief that the GECOM Chairman must be able to function independently and impartially in the execution of his duties.
On Monday, the Chief Justice handed down a ruling in response to concerns raised over President Granger’s interpretation of the constitution as it regards the appointment of a GECOM chairman. Justice George-Wiltshire noted that the GECOM chairman does not necessarily have to be a judicial officer, or a person qualified as such.
The person, she noted, however, must possess integrity, honesty and impartiality. She stressed that the words ‘fit and proper’ can apply to persons from a number of professions or calling.
The judge noted that Article 162 (2) of the Constitution speaks to the need for dialogue and compromise.
As such, she noted that Granger in rejecting the list provided by the opposition should give reason for the rejection of the names as it would give an indication of those to be accepted.

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