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President‘s appointment of GECOM Chairman overrides constitutional democracy—Nandlall
GECOM Chairman: Retired Justice James Patterson
Attorney -at-law, Anil Nandlall is arguing that the President’s appointment of the Chairman of the Guyana Elections Commission, (GECOM) defeats the purpose for the amendments to Articles 16 of Guyana’s Constitution.
The lawyer presented his arguments when the Court of Appeal commenced hearing the legal challenge to the appointment of Justice James Patterson as GECOM Chairman, yesterday.
The PPP is challenging President David Granger’s unilateral appointment of the 84-year-old retired judge. The appointment was made on October 19, last year.
A previous challenge, which had engaged the Courts for some time was dismissed by Chief Justice Roxane George-Wiltshire.
She ruled that the President enjoys the right to reject the list of names provided by Leader of the Opposition Bharrat Jagdeo, and unilaterally appoint someone from the judicial category as Chairman of GECOM, as outlined in Article 161 (2) of the Constitution of Guyana.
However Nandlall told the Appeal Court that Article 16 of the Constitution was amended to make provisions for the two main political groups to have an input in selection of top officials on the elections commission.
The amendments were made based on recommendations by former US President Jimmy Carter to create a more balanced and democratic system of governance for GECOM.
He explained that what the crafters of the legislation had in mind was for Guyana to move away from unilateralism in the appointment of GECOM.
“In addition, the six commissioners; three from the ruling party and three from the opposition, the amendments provides for the appointment of a Chairman of the Guyana Election Commission, who shall be appointed based on approval from both the President and Leader of the Opposition.”
According to Nandlall, the Carter formula was intended and designed to create, as far as possible, a politically consensual and balanced Elections Commission.
“The person of the Chairman must enjoy the confidence of both the President and the Opposition Leader…That‘s the magic of the Carter formula.”
He noted, too, that the chairman holds a critical position to the structure of GECOM.
“The Chairman holds the casting vote, in case there is a deadlock between the opposition and government commissioners on a particular matter.
This Chairman comes from a list of six which emanates from the Leader of the Opposition but which must find the acceptability of the President from which he is empowered to choose one.
The lawyer went on to explain that the President’s interpretation of the proviso rule in Article 16 of the constitution is therefore flawed.
The proviso is there in case the opposition leader failed to provide a list. Three lists of suitable candidates were provided and all were rejected by the President, who then appointed Justice Patterson as Chairman.
Nandlall stressed that a Chairman chosen by the President alone, destroys the vital equilibrium which the Elections Commission was intended to possess.
As such, the lawyer said that the President’s appointment of Justice Patterson overrides the very bedrock of our constitutional democracy directly related to the integrity of our electoral machinery.
Nandlall asked the Appeal Court to take these among other arguments into consideration in making a decision in the case against Patterson’s appointment.
Meanwhile, Attorney General, (AG) Basil Williams S.C who was joined by a team of lawyers laid over submissions which among other things, contended that the Court of Appeal is obliged to protect the integrity of its own process and its inherent jurisdiction is also available for this purpose.
The AG in essence submitted that the challenge to the lawfulness or constitutionality of the appointment of the GECOM Chair questions whether councillors can be validly elected on November 12, 2018 at Local Government Elections (LGE) administered and conducted by Justice Patterson.
“It is therefore submitted that the validity of the appointment of Justice Patterson, Chairman of GECOM cannot be challenged until after the LGE are held and results declared, because Guyana is in the process of elections and then by way of an election petition,” Williams contended.
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