The Appointment of a GECOM Chairman: Constitutional Heresy


THE UNRULY HORSE With By Mohabir Anil Nandlal

I am convinced that the PNC has not changed, from, historically, a party that is innately and inherently authoritarian and undemocratic and if allowed, will rig every election in this country as it has done from 1968-1985.

The unilateral appointment of Retired Justice James Patterson vindicates absolutely what I have said, repeatedly, over the last two and a half years, that is, we are on a road to political dictatorship and authoritarianism. The President did not see it fit to even consult with his coalition partners in Government on this fundamental appointment. Both the AFC and the WPA have so confirmed in public statements. It is difficult to conceive of a clearer exhibition of dictatorship than this. At least the WPA’s reaction was critical. The response of the AFC will have to be the subject of an entire article.

I said from the inception that President Granger would eventually choose a person for his own liking, irrespective of the provisions of the Constitution. A year thereafter, that is exactly what he has done. In the process, he has led this nation along a deceptive and agonizing path of public debates on constitutional interpretations, public consultations that produced 18 outstanding Guyanese, all of whom were eventually rejected, and a ruling from the constitutional court – all of which made no difference in the end. Instead of using the Ruling as a guide, the President craftily uses selective parts of it to justify his perverse appointment.

The President, from the inception, misinterpreted Article 161 (2) of the Constitution by contendingthat it only qualifies a judge, a former judge or a person qualified to be a judge, for the position of the Chairman of the Guyana Elections Commission (GECOM). When this interpretation was met with public condemnation, only then the President conceded that that provision of the Constitution also caters for “any other fit and proper person”. Even when he recognized that the Constitution spoke to the latter category, the President and his Attorney General injected another nonsensical slant to their interpretation by arguing that the Constitution expresses a preference for the judicial category.

Proviso has no Applicability

These infantile interpretations to the clear language of the Constitution were all putto rest by the Chief Justice’s Ruling. Now the President has misinterpreted the other part of Article 161 (2), that is, the proviso. When one examines the intention of the framers of the Constitution, which was to create a bi-partisan mechanism to produce a chairman of GECOM, no rational mind would be unclear when the proviso can be activated. It can only be activated when no list has been submitted by the Leader of the Opposition.
Once a list has been submitted, this proviso has no applicability. Any other interpretation would make a mockery of the letter but moreover, the spirit of the Constitution because every President would then be free to reject a list submitted to him by the Leader of the Opposition and appoints a person of his own choice, rendering the very constitutional provision otiose, superfluous and nugatory. President Carter and those who coined the Carter Formula were not that naïve.

Great moment is being made by those who wish to defend the travesty committed by the President by arguing that the words “a list as is provided for”, in the proviso means a list submitted by the Leader of the Opposition which finds the acceptability of the President. I reject this argument as misconceived. The article when read literally cannot mean that; but more importantly, the literal words of the article cannot be read in isolation from the spirit and intention of those who crafted it.

Let us examine what responsibility the Article imposes on the Leader of the Opposition and the President, respectively.I submit that a duty is placed on the Leader of the Opposition to submit a list of six names to the President, which in the opinion of the Leader of the Opposition is not unacceptable to the President, from which the President is empowered to choose one. Since the Leader of the Opposition is not endowed with clairvoyant powers or an ability to read the President’s mind, the framers of the Constitution could not have expected and do not expect him to know which names the President would find not unacceptable. Therefore, the responsibility is on the Leader of the Opposition to select six names that in his opinion, the President would find not unacceptable. The Leader of the Opposition submitted not 6 but 18 such names to the President. To his credit, the Leader of the Opposition did not confine the 18 names submitted to his subjective judgement. He engaged several major organisations in this country in a consultative process which produced those names.

The Golden Rule

Simultaneously, when the Constitution vests with the President, a power or a discretion to determine whether the names are not unacceptable, the framers of the Constitution expect and the law mandates that power and discretionto be exercised rationally and reasonably and not capriciously and whimsically but in a manner that a responsible President would do in the circumstances. To enable him space to exercise that power, the Constitution was fair enough to give him six choices. In this particular instance, he had 18 choices.

If any doubt or ambiguity arises in interpreting the literal language of the constitutional provision, then the established cannons of construction mandate that the golden rule be employed in the interpretative process. This golden rule requires the interpreter to decipher the intention of the framers of the Article. This takes us straight back to the Carter Price/Formula, where the intention was to dispense with the unilateral appointment of a chairman of the Elections Commission and to establish an election’s commission whose membership evenly reflects both the Opposition and the Government with a Chairman produced by a process involving both the Leader of the Opposition and the President.

Out of this intention, came GECOM, comprising of 6 Commissioners, three representing the Government and three representing the Opposition and a Chairman who is empowered with the authority of a casting vote to break gridlock and who is to be appointed from a list of six names emanating from the Leader of the Opposition from which the President is obliged to select one.Therefore, the President was never intended to have a unilateral power of appointment. His power of appointment is circumscribed to that list of six names submitted to him by the Leader of the Opposition. It is only in the rare and exceptional circumstance where there is no list submitted then the President can make a unilateral appointment.

I must emphasize that it was never expected that the President must find the names acceptable. After all, the names are coming from his political opponent. That is why the framers of the constitution, rather than use the word acceptable they used the double negative, not unacceptable. Therefore, the names submitted are not necessarily to be acceptable to the President. They must be not unacceptable. The term not unacceptable does not mean acceptable. I say all of this to illustrate the length at which the framers of the constitution travelled to ensure that there is a Chairman produced through a bilateral process and to eschew a unilateral appointment, except in that rare and exceptional circumstance where there is no list provided. Therefore, a unilateral appointment will lead to the destruction of that vital balance at GECOM, which the framers of Article 161 intended to create.

The Three I’s

The perversity of the decision to act unilaterally is compounded by the fact that the President has not given a single reason for rejecting 18 accomplished, professionally qualified and respected Guyanese. Legal arguments aside, the President led this country to believe by several public statements, including a joint statement with the Opposition, that he will not act unilaterally but will pursue a collaborative course on this issue to the very end. So on that note, the President has simply deceived to the nation. If anyone was in doubt about the President’s bonafides in this matter, those doubts would have immediately dissipated by the choice the President made in the form of Retired Justice Patterson.
I had the privilege of attending almost every meeting between the Leader of the Opposition and the President on this matter. At one point in time, the Leader of the Opposition had asked the President for some guidance on the criteria he would find acceptable after the first six names were rejected. I remember the President saying that the person must possess the three ‘Is’ that is, they must be “independent”, must have “integrity” and must be “impartial”. I say with the greatest of respect that Justice Patterson does not satisfy these requirements.

In his resume, Justice Patterson states that he was the Chief Justice of Grenada in 1987. I have spoken to several retired judges and lawyers from Grenada and in the Eastern Caribbean jurisdictionsbut no one can confirm that Justice Patterson was appointed Chief Justice of Grenada. I have consulted a book, which chronicles all the important post holders of Grenada annually and the Chief Justice of Grenada in 1987 is listed as Sir Samuel Horatio Graham. I have received information that a Guyanese who worked for over 25 years in Grenada in a very high public office has advised the President that Justice Patterson was never appointed Chief Justice in Grenada, yet the President cites Justice Patterson’s alleged appointment as Chief Justice of Grenada as the basis of appointing.

Rally Around The People’s National Congress

In a list of criteria submitted by the President to the Leader of the Opposition, the President indicated that the candidate who he is looking for must not be a religious activist or leader. As a result, the Leader of the Opposition deliberately omitted to include any religious leader in the names, which he submitted to the President. In his CV, Justice Patterson described himself as a reverend and an entire page in that CV is dedicated to listing the several theological qualifications which he possesses and religious posts which he held. In that list of criteria, the President stated that the candidate should not have “any political affiliation or should not belong to any political party in any form, apparent or hidden” and that the person should have a general character of honesty and integrity

Justice Patterson can, by no objective standards, be adjudged as impartial or independent or, not connected to the People’s National Congress. Indeed, the evidence available link him intricately to this Government and to the PNC. He has been appointed as an Adviser to the Attorney General, a post for which he is being remunerated; so he is an employee of the Government. He has been appointed by the President to head a Commission of Inquiry into the Georgetown Prison break in July 2016. He has been appointed by the President to the Advisory Committee on the Prerogative of Mercy; so he is an Adviser to the President. He has been appointed by the President to a committee to review applications for the position of Chief Justice and Chancellor of the Judiciary.

Even more damaging, he was a pallbearer at former President Desmond Hoyte’s funeral. This was not the State funeral but a private event for Party leaders and supporters held at Merriman’s Funeral Parlour. The other pallbearers at that event were all PNC leaders, members and supporters. This information can be found on the PNC website, I have photographs in the event that they now wish to remove them. Justice Patterson is also a member of the Facebook page calling itself ‘Rally around the People’s National Congress’, established just before the 2015 General Elections.

How can the Guyanese electorate have any confidence in this person’s independence, impartiality and integrity? One cannot discount the fact also, that the Government has asked Justice Cecil Kennard to resign as Chairman of the Police Complaints Authority and Prem Persaud to resign from the Public Utility Commission and the Judicial Service Commission. Their ages are 80 and 76 respectively. The President is reported in the press as saying that they were requested to resign because of their age. Mr. Patterson is 84 years old. Yet, the President appoints him.

The appointment simply cannot be allowed to stand.

Mohabir Anil Nandlall is an attorney at law and a member of parliament in Guyana.
The views expressed in this column are solely those of the writer and do not necessarily represent the views of the THE WEST INDIAN.