GECOM: A legal enigma

May 24, 2019 Letters

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DEAR EDITOR,

It must now be excruciatingly clear that the Government-nominated members of the Guyana Elections Commission (GECOM) and the Chairman, harbour no qualms about exposing their political partisanship and are decidedly determined to execute political directions, even if it results in unconstitutional and irrational actions.
GECOM is a creature of the Constitution and is legally tethered to the four corners of that instrument. It has no jurisdiction or power to act outside of its parameters. The plain language of the Constitution, indisputably, establishes that the raison d’être of GECOM is the holding of elections. Every other function devolving upon it is an accessory, to aid and abet it, in discharge this ultimate mandate. The functional responsibilities of GECOM are enumerated in Article 162 of the Constitution. In the discharge of these tasks, the Constitution expressly commands it “to ensure impartiality, fairness and compliance with the provisions of this Constitution or of any Act of Parliament…”
It is now public knowledge that GECOM was made a party by the Caribbean Court of Justice (CCJ) to the appeals, recently heard by that Court arising out of the No-Confidence Motion passed in the National Assembly on December 18, 2018. One needs not be a lawyer to conclude that GECOM was joined to those proceedings because the CCJ apprehends that it may make orders and give directions, which will impact upon GECOM, if it rules that Article 106 of the Constitution has been violated, in order to give effect to the intendment of the framers of that Article. The framers of that Article, undoubtedly, intend early elections as one of the consequences of the passage of a No-Confidence Motion. In our constitutional matrix, GECOM is the dominant player in the execution of this intention.
Indeed, at the hearing of the appeal, almost every one of the judges expressly alluded to this eventuality. I am fortified in this regard, by the fact that the Court indicated that depending on how it rules; a hearing will be facilitated for the lawyers to address the Court on the consequential orders, which are to be made. Ineluctably, these will include specific edicts to GECOM in respect of the holding of elections. On multiple occasions, the judges of the CCJ reiterated not only GECOM’s servitude to the Constitution, but emphasised its undisputed duty to comply with both its letter and spirit.
In the High Court, pending before the Chief Justice, are legal proceedings that seek to declare the House-to-House registration upon which GECOM plans to embark, as unlawful and unconstitutional. GECOM has filed a defence to those proceedings. The court has ordered all parties to submit their legal arguments in writing, within timeframes specified.
In the interregnum, GECOM’s legal advisor has rendered a written opinion, which fortunately, has been made public. In this opinion, learned counsel advised that not only is the proposed House-to-House registration unnecessary, but significantly, that it will be violative of the law. It is no coincidence, that this opinion espouses the identical legal premise upon which the challenge in the High Court is predicated. At the end of the day, the law remains the law, irrespective of who reads it, once it is done professionally.
Unsurprisingly, this opinion from a professional, was crassly and uninitiatedly deprecated by Commissioner Desmond Trotman, himself unlearned in the law. He further descended to attribute to this lawyer, ulterior and illicit motives. This uncouth and unwarranted attack on a professional for simply discharging her duties but which does not meet a political expectation must be condignly condemned. Commissioner Vincent Alexander followed suit. He accused this legal officer of misrepresenting GECOM’s position to the CCJ. These are professionally grave and reputationally damaging allegations to be made against any professional.
I am not privy to the instructions imparted to counsel and will, therefore, refrain from further comment. Hopefully, counsel will respond. I have no doubt that her current silence is tied to her continuous employment. We will have to await her dismissal or resignation before a response is forthcoming. This has become the hazardous reality of every professional working with the Government. One only needs to read a letter currently in circulation, which appears to have been inked by self-proclaimed victims of the Attorney General.
In a normal democratic society, governed by a Constitution, which is the supreme law and one in which the rule of law prevails, having regard to the circumstances expatiated above, an institution akin to GECOM, would, in deference to the constitution and out of reverence for legal proceedings pending both before the highest Court in the land and the Chief Justice of the country, coupled with the guidance adumbrated by its own legal officer, presumably in whom it reposed confidence to hire and retain in the first place, at a minimum, stay any proposed actions whose legality and constitutionality are the subject of the pending legal proceedings and advice. Not our GECOM.
As if to intentionally demonstrate to the judicial arm of the State that it has no regard and respect for, either its processes, or the Constitution, or the law, GECOM is galloping ahead like an unruly horse with house to house registration, in order to execute its political party’s directions.
This is not only conduct, which is contumacious of the process of the Courts and the Constitution, but it is clearest illustration, in recent times, of the return of party paramountcy.
Against such factual tapestry, how can GECOM enjoy public confidence and public trust in its integrity and independence when it has been so demonstrably partisan and politically toxic?

Mohabir Anil Nandlall, MP
Attorney-at-Law

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