JUSTICE PATTERSON’S APPOINTMENT WAS BY FIAT OF THE CONSTITUTION

Nov 29, 2017 Letters

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Dear Editor,
On October 19, 2017 President David Granger appointed 84-year-old former Guyana Supreme Court Justice, James Patterson, as Chairman of the Guyana Elections Commission. This appointment, although controversial, was intra vires the constitutional powers of the presidency, pursuant to Article 161 (2) of the constitution.
Justice Patterson’s qualifications are impeccable; with forty years’ experience in the law as a barrister, legal counsel, prosecutor and jurist.
Dr. Steve Surujbally resigned as Chairman on November 30, 2016, creating a vacancy. The President caused Opposition Leader, Mr. Bharrat Jagdeo, to submit a list as provided for in Article 161 (2). The constitution mandates “a list;” meaning one list of six names. President Granger rejected the first list Mr. Jagdeo submitted but thereafter allowed him to submit two additional lists. (I believe this was an error and extra-constitutional act).
Mr. Jagdeo apparently engaged in brinkmanship to limit the President’s selection to persons of a sympathetic political persuasion, and not the ability to dispassionately and impartially execute the law. Consequently, the President rejected all three lists; thereby triggering the proviso.
The mandates in Article 161 (2) have unambiguous, dual applicability. The President is compelled to appoint a Chairman and the Opposition Leader is compelled to submit a list “as provided for.” Additionally, the Article grants the President a provisional mandate to, “if the Leader of the Opposition fails to submit a list as “provided for,” supersede the main provision and autonomously appoint a judge or former judge to be Chairman.
Justice Patterson’s appointment, therefore, was by fiat of this proviso. The obvious ratiocination is that the proviso vitiates the preceding provision if the Opposition Leader either (I) fails to submit a list. (II) fails to submit a list of persons with the enumerated qualifications or (III) fails to submit a list of names that are acceptable to the President. Any or all of these failures is a breach of the constitution, WHICH MAY RENDER THE LIST UNACCEPTABLE.
The Commission comprises seven members; three from the government, and three from the parliamentary opposition. The Chairman – a creature of the aforementioned bipartisan process – is intended to be independent. These extant laws, derive from a 1992 modus vivendi (the Carter formula), were intended to foster engagement and consensus between the government and opposition, to import bipartisan confidence in the electoral process.
These terms were enshrined into the constitution in 1996 and enhanced in 2000, to fully realize the original intent. Hence, the lack of consensus between the President and Opposition Leader has inevitable consequences; (I) the list will be rejected and (II) that rejection automatically triggers the proviso which compels the President to act independent of the Opposition Leader.
The Opposition Leader cannot for political expediency breach the constitution by abdicating his responsibilities, and then demand that the President countenance his violation by accepting the defective list.
The law expressly directs the President to pursue an alternate process if the list is not acceptable. That is to invoke the proviso to guarantee continuity of governance at the Commission. Ironically, the proviso was enacted during Jagdeo’s presidency.
My own view is that although Justice Patterson has expansive knowledge of, and fidelity to, the rule of law and is fully qualified for the position, a younger person, who is similarly qualified, should have been appointed. The Granger administration demonstrates a troubling appetence for abandoning qualified younger people in favour of the dinosaur class. This will continue to fuel the brain drain among young people.
Mr. Jagdeo has launched a campaign to assassinate Justice Patterson’s character, and is engaging in seditious and xenophobic demagoguery to engineer polarization and instability. The Granger administration’s response has been pathetic and nugatory. The void has only enabled Mr. Jagdeo’s echo chamber.
Mr. Jagdeo apparently believes he has a juridical right to appoint the Chairman, and has petitioned the Supreme Court to uphold that presumed right. He has also threatened to take to the streets to make Guyana “ungovernable.” He must recall that his administration imprisoned, shot and killed hundreds of Guyanese who fought him for their human rights and dignity.
The work of the Elections Commission must proceed. Mr. Jagdeo will protest if he must. That is his constitutional right!
Rickford Burke
President, Caribbean Guyana Institute for Democracy (CGID)

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