No rational mind can dispute GECOM’s legal authority to dismiss any member of the Secretariat staff

Jul 12, 2021 Letters

Dear Editor,
The Guyana Elections Commission (GECOM) is created by Article 161 of the Constitution of the Cooperative Republic of Guyana. I have often reiterated that logic and common sense follow the law. It inheres in both logic and common sense that in whom is vested the power to hire, concomitantly, enjoys the power to fire.
This reasoned and logical idiom manifests itself in Article 161 A of the Constitution. The relevant portion reads: 161 (A) (1) “the Elections Commission shall be responsible for the efficient functioning of the Secretariat of the Commission, which shall comprise the Officers and Employees of the Commission and for the appointment of all the staff to the offices thereof… and shall have the power to remove and to exercise disciplinary control over such staff.” It must be elementary knowledge, even to lay men, that “disciplinary control” necessarily includes a power of dismissal.
In the premises, no rational mind can therefore dispute GECOM’s legal power and authority to dismiss any member of the Secretariat staff. It is common knowledge that the Chief Elections Officer, the Deputy Chief Elections Officer and a Returning Officer are all members of staff of the GECOM Secretariat.
Like every other commission created by the constitution, GECOM “shall not be subject to the direction or control of any other person or authority.”
This functional autonomy is ensconced in Article 226 (1) of the Constitution. In the autonomous discharge of its powers and functional responsibilities, GECOM is empowered to make rules, to regulate the procedure of the Commission and until such rules are made, the Commission shall regulate its own procedure.
This characteristic of independence is guaranteed by Article 226 (2) of the Constitution in language expressed in such clarity that it brokers no ambiguity. GECOM has never made any rules to regulate its procedure in the manner contemplated by the constitution. The Commission, therefore, remains free to regulate its own procedure.
Like every other Commission or indeed, entity, whose constituent members represent different and competing interests, decisions are made by votes. GECOM is no different. Article 226 (4) of the Constitution decrees that any question for decision by the Commission shall be determined by a majority of the votes of the members of the Commission present and voting at a meeting of the Commission; and if on any question, the votes are equally divided, the Chairman shall have a casting vote in addition to his or her original vote.
Anyone, who has even a mere fleeting familiarity with how the business of an entity, whose decisions are made by votes, functions, would know that the decision-making process is initiated by the proffering of a motion.
This motion is normally seconded and then debated. Upon the conclusion of that debate, a vote is taken, and the decision emanating therefrom is usually expressed in a resolution.
It is a fact of public notoriety that in the exercise of its freedom to regulate its own procedure enshrined in Article 232 (4) (above), GECOM has resolved to use this universally utilised process in treating with the issue of the removal of three of its employees.
In this procedural matrix, the contention that the movers and supporters of these motions cannot participate in the debate or vote on these motions borders on such absurdity reminiscent of the proposition that 33 is not a majority of 65! To invoke the sacrosanct jurisprudential concept of natural justice in such a procedural prototype is simply to denigrate these hallowed principles.
To further illustrate the ludicrosity of this type of legal reasoning, I will render just one example: applying this curious logic to two No Confidence Motions presented to the Clerk of the National Assembly against two Ministers of the Government in the name of the Leader of the Opposition, neither the Leader of the Opposition nor any Member of the Opposition can speak or vote on these two motions by virtue of the principle of “natural justice”.
Yours truly,
Mohabir Anil Nandlall, SC
Attorney-General

Discover more from Kaieteur News

Subscribe to get the latest posts sent to your email.

Latest News