Attorney-General replies to the Bar Association

Jul 24, 2017 Letters

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Dear Editor,
The Ministry of Legal Affairs said it believes that the Guyana Bar Association’s expectation that the President will conform with the recent ruling by Chief Justice (ag.) Roxanne George-Wiltshire in the Guyana Elections Commission chairman appointment case is premature, owing to the fact that the applicant, Marcel Gaskin and Leader of the Opposition, Bharrat Jagdeo have shown public dissatisfaction and signalled their intention to appeal it.
Since the CJ’s ruling, both Gaskin and Jagdeo said they will challenge aspects of the ruling. In a statement reacting to the Chief Justice’s ruling Gaskin had said, “in my view, the Honourable Chief Justice went beyond what was asked by me of the court in addressing the proviso to Article 161 (2) which only applies if the Leader of the Opposition fails to submit a list. This was never an issue for us since the Leader of the Opposition submitted not only one but two lists of persons for nomination as Chairman of GECOM.”
He argued that Justice George-Wiltshire by “extending beyond the requirement of my case,” made a “gross error” in ruling that the President is not obliged to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as fit and proper person for appointment.
“This is a non sequitur and creates unnecessary misunderstanding and confusion,” said Gaskin who noted that “in the circumstances, and despite the Honourable Chief Justice’s otherwise helpful ruling, I have instructed my attorneys to immediately lodge a Notice of Appeal.”
For his part Jagdeo said “…I am informed that in the course of her ruling, the Honourable Chief Justice is interpreted to have said that if the President deems every name on a list as unacceptable, then the proviso to Article 161 applies. If this report is correct, we respectfully take issue with this aspect of the Chief Justice’s ruling. We maintain most resolutely that the proviso only applies when no list has been submitted. That once a list has been submitted, the proviso has no applicability.”
He said the proviso to Article 162 of the Constitution had not been placed before the court for its interpretation, nor was it part of any of the questions posed to the court, nor was it the subject of any legal submissions, neither from the Applicant’s, or the Guyana Bar Association nor his Attorneys-at-Law.
“It is therefore rather strange that such a proposition appears to form part of the ruling in the case. I await a copy of the written decision and if that statement is in fact in the written decision, then I will have no alternative but to support any appeal filed by Marcel Gaskin in the matter.”
The Ministry of Legal Affairs questioned given the foregoing statements by both gentlemen whether it would not have been prudent for the Bar Association to call on them to conform with the CJ’s ruling, rather than directing its message to the President who has not expressed any public dissatisfaction with the judgment or stated any intention to appeal it.
Additionally, the Legal Affairs Ministry asserted that in any event, the CJ’s ruling is not a final binding one as the applicant has six weeks to appeal and the case can go all the way to the Caribbean Court of Appeal for a final decision.
The Ministry also referred to Attorney General, Basil Williams SC initial comments on Justice George-Wiltshire’s ruling, saying that her decision confirms it is the President who must determine that the list is acceptable.
The Chief Justice also confirmed that it is the President acting in his own deliberate judgment who must determine whether a person is fit and proper, the AG has said.
“The Chief Justice also advised that there is no legal requirement for the President to state reasons for rejecting a list, though modern thinking suggests that he should. The Chief Justice further advised that the President is not obligated to select a person from the six names on the list unless he has determined positively that the persons thereon are unacceptable as fit and proper persons for appointment.”
The AG had said too that the Chief Justice advised that each person must be considered by the President unless the President provided the Leader of the Opposition with guidelines of who is unacceptable. President Granger did provide the Leader of the Opposition with a list of criteria for a Person to be qualified for the position of Chairman of the Guyana Elections Commission.
The Leader of the Opposition did not object to those criteria and submitted a second list. The Attorney General said that the President did not have to receive a second list and could have gone ahead and appointed a chairman having rejected the first list.
Hon. Basil Williams
Attorney-General 

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